Bork Judge

S. HRG. 100-1011, Pt.
NOMINATION OF ROBERT H. BORK TO BE

ASSOCIATE JUSTICE OF THE SUPREME COURT
OF THE UNITED STATES
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDREDTH CONGRESS
FIRST SESSION
ON
THE NOMINATION OF ROBERT H. BORK TO BE ASSOCIATE JUSTICE OF

THE SUPREME COURT OF THE UNITED STATES
SEPTEMBER 15, 16, 17, 18, 19, 21, 22, 23,

25, 28, 29, AND 30, 1987
Part 1 of 5 Parts
Serial No. J-100-64
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE

86-974 WASHINGTON : 1989
For sale by the Superintendent of Documents, U.S. Government Printing Office

Washington, DC 20402
JOSEPH R. BIDEN, JR., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts STROM THURMOND, South Carolina
ROBERT C. BYRD, West Virginia ORRIN G. HATCH, Utah
HOWARD M. METZENBAUM, Ohio ALAN K. SIMPSON, Wyoming
DENNIS DECONCINI, Arizona CHARLES E. GRASSLEY, Iowa
PATRICK J. LEAHY, Vermont ARLEN SPECTER, Pennsylvania
HOWELL HEFLIN, Alabama GORDON J. HUMPHREY, New Hampshire
PAUL SIMON, Illinois
MARK H. GITENSTEIN, Chief Counsel
DIANA HUFFMAN, Staff Director
DENNIS W. SHEDD, Minority Chief Counsel
R.J. DUKE SHORT, Minority Chief Investigator
JEFFREY J. PECK, Special Counsel
DARLA POMEROY, Staff Assistant
(II)
CONTENTS
Page
Hearing Dates iv
Chronological List of Witnesses, Questioning and Materials Submitted iv
Post-Hearing Correspondence Between Judge Bork and the Committee xxi, 3896
Additional Submissions for the Record ,. xxn, 3959
Alphabetical Index of Witnesses, Questioning and Materials Submitted for
the Record xxvm
Appendix: Report of the Committee 6180
Witness List 6501
(in)
HEARING DATES
Page
Tuesday, September 15, 1987 1
Wednesday, September 16, 1987 193
Thursday, September 17, 1987 319
Friday, September 18, 1987 445
Saturday, September 19, 1987 795
Monday, September 21, 1987 865
Friday, September 25, 1987 2241
Monday, September 28, 1987 2759
CHRONOLOGICAL LIST OF WITNESSES, QUESTIONING AND

MATERIALS SUBMITTED
Tuesday, September 15, 1987
Presenters
Ford, Honorable Gerald R., former President of the United States 3
Questioning by Senator DeConcini 11
Dole, Honorable Bob, United States Senator from the State of Kansas 12
Danforth, Honorable John C, United States Senator from the State of Mis-
souri 17
Fish, Honorable Hamilton, Jr., Representative in Congress from the State of
New York 21
Opening Statements of Committee Members
Biden, Honorable Joseph R., Jr 94
Thurmond, Honorable Strom 29
Kennedy, Honorable Edward M 32
Hatch, Honorable Orrin G 35
Metzenbaum, Honorable Howard M 44
Simpson, Honorable Alan K 47
DeConcini, Honorable Dennis 51
Grassley, Honorable Charles E 59
Leahy, Honorable Patrick J 66
Specter, Honorable Arlen 75
Heflin, Honorable Howell T 77
Humphrey, Honorable Gordon J 85
Simon, Honorable Paul 92
Byrd, Honorable Robert C 121
Witness
Bork, Robert H., United States Circuit Court Judge for the District of Colum-
bia Circuit, to be Associate Justice of the Supreme Court of the United
States 103
Opening Statement 103
Questioning by:
Chairman Biden 112, 127
(IV)
V
Page
Senator Byrd 126
Senator Thurmond 128
Senator Kennedy 149
Senator Hatch 176
Prepared Statements
Ford, Honorable Gerald R 6
Dole, Honorable Bob 14
Danforth, Honorable John C 19
Fish, Honorable Hamilton, J r 24
Metzenbaum, Honorable Howard 45
DeConcini, Honorable Dennis 54
Grassley, Honorable Charles E 63
Leahy, Honorable Patrick J 70
Humphrey, Honorable Gordon J 89
Bork, Judge Robert H 106
Materials Submitted for the Record
Letter from Judge James F. Gordon to Chairman Biden, August 24,1987 136
Memorandum from Judge Bork to Judge Roger Robb, October 1, 1982 139
Memorandum from Judge Robb to Judges Bork and Gordon, October 5, 1982... 140
Memorandum from Judge Bork to Judges Robb and Gordon, October 8,1982... 141
Letter from Judge Gordon to Judge Bork, December 17,1982 143
Memorandum from Judge Robb to Judges Bork and Gordon, March 19, 1982 ... 144
Memorandum from Judge Bork to Judges Robb and Gordon, September 17,
1982 145
Letter from Judge Bork to Judge Gordon, September 24, 1982 146
Speech by Robert Bork at the Mayflower Hotel, May 1974 163
Memorandum from Robert Bork to the Attorney General regarding pocket
vetoes, January 26, 1976 177
Wednesday, September 16, 1987
Witness
bia Circuit 193
Questioning by:
Senator Metzenbaum 193, 235
Chairman Biden 232, 241, 258, 264
Senator Kennedy 235
Senator Simpson 236, 242
Senator DeConcini 248
Senator Grassley :. 259, 264
Senator Leahy 267
Senator Specter 277
Senator Heflin 288
Senator Humphrey 296
Senator Simon 307
Memorandum from Alexander M. Haig, Jr. to President Nixon, August 2,
1973 198
Letter from Robert Bork to Alexander Haig, July 31, 1973 199
Letter from Charles L. Black, Jr. to The New York Times, July 25, 1973 200
Memorandum from Patrick Buchanan to Alexander Haig, August 3, 1973,
with copy of Charles L. Black, Jr., "Mr. Nixon, the Tapes, and Common
Sense," The New York Times, undated 202
Memorandum from Alexander Haig to President Nixon, August 8, 1973 204
Excerpt from the Congressional Record, August 1, 1973, with letter from
Charles L. Black, Jr. to Congressman Bob Eckhardt, July 30, 1973 205
Letter from Robert Bork to Alexander Haig, August 3, 1973, and Congression-
al Record excerpt, August 1, 1973 t 212
VI
Page
Letter from Robert Bork to Leonard Garment, August 3, 1973 215
Telephone Memorandum, The White House, August 3, 1973 216
Letter from Senator Kennedy to Robert Bork, November 16, 1973 218
Letter from Robert Bork to Senator Kennedy, undated 223
Newspaper article by Lloyd N. Cutler, "Judge Bork: Well Within the Main-
stream," The Washington Post, September 16, 1987 247
Letter from Warren I. Cikins to The Washington Post, July 28, 1987 310
Letter to the editor from Joshua O. Haberman, The Washington Post, August
6, 1987 311
Thursday, September 17, 1987
Witness
bia Circuit 319
Questioning by:
Senator Kennedy 336
Senator Hatch 345
Senator Metzenbaum 360
Senator Simpson 380
Senator Grassley 400, 406
Senator Leahy 416, 427
Senator Humphrey 426, 427
Senator Specter 427
Senator Simon 438
List of "Supreme Court Briefs Where Solicitor General Bork Supported the
Rights of Minorities,'' submitted by Judge Bork 354
Rights of Women," submitted by Judge Bork 357
Compilation of "Bork on BorkThe World According to Robert Bork," pre-
pared by Senator Kennedy, September 17, 1987 370
Letter from James T. Halverson and other previous chairmen of the Section
of Antitrust Law of the American Bar Association to The Washingon Post,
August 7, 1987 388
List of "100 Selected Law Professors Favoring the Confirmation of Robert H.
Bork as an Associate Justice of the United States Supreme Court" 408
Friday, September 18, 1987
Witness
bia Circuit 445
Questioning by:
Senator Heflin 445
Chairman Biden 452, 593, 642, 664, 676, 679, 696
Senator Hatch 471, 594, 643
Senator Kennedy 646, 666
Senator DeConcini 676, 722
Senator Byrd 679
Senator Grassley 689
Senator Specter 713
Senator Leahy 746
Newspaper article by Stuart A. Smith, "Bork Deserves to be a Justice," The
New York Times, September 16, 19.87 455
VII
Page
List of "Substantive Pro-Minority and Pro-Women Appellate Court Decisions
by Judge Bork," prepared by Senator Hatch, with copies of decisions 472
Rights of Women," submitted by Senator Hatch 583
Rights of Minorities," submitted by Senator Hatch 584
Transcript of Department of Justice "Press Conference of Honorable Robert
H. Bork, Acting Attorney General of the United States," with attachments,
October 24, 1973 595
Newspaper article, "Senate Democrats Ask Independent Special Prosecutor,"
The Washington Post, October 24, 1973 632
Newspaper article, "Nixon Plan on Prosecutor is Opposed by Mansfield," The
New York Times, October 28, 1973 634
Newspaper article, "Nixon and Bork Reported Split on Prosecutor's Role,"
The New York Times, October 29, 1973 636
Newspaper article, "A Retraction on Bork," The Washington Post, November
22,1973 638
Excerpt from Stonewall. The Real Story of the Watergate Prosecution, by
Richard Ben-Veniste and George Frampton, Jr. (Simon and Schuster 1977)... 639
Article by Robert Bork, "The Struggle Over the Role of the Court," National
Review, September 17, 1982 650
Speech by Robert Bork, "The Crisis in Constitutional Theory: Back to the
Future," The Philadelphia Society, April 3, 1987 653
Letter from Paul Marcus to Senator DeConcini, September 17, 1987 725
Newspaper article, "UA's Dean Marcus Calls for Bork's Confirmation," Arizo-
na Daily Star, August 29, 1987 726
Compilation of "Statistics Concerning Judge Bork's Record on Appeal In
Cases Where He Wrote or Joined the Majority Opinion," prepared by
Compilation of "Statistics Concerning Subsequent History with Respect to
Judge Bork's Dissenting Opinions," prepared by Senator Humphrey 740
Passage from the 1967 hearing on the nomination of Justice Thurgood Mar-
shall, submitted by Senator Humphrey 744
Letter from Judge Bork to Chairman Biden regarding Vander Jagt v. O'Neill,
October 1, 1987 756
Memorandum from Judge Robb to Judges Bork and Gordon, March 19, 1982 ... 761
Memorandum from Judge Bork to Judges Robb and Gordon, September 17,
1982 762
Letter from Judge Bork to Judge Gordon, September 24, 1982 763
Memorandum from Judge Bork to Judge Robb, October 1, 1982 764
Memorandum from Judge Robb to Judges Bork and Gordon, October 5, 1982... 765
Memorandum from Judge Bork to Judges Robb and Gordon, October 8, 1982... 766
Letter from Judge Gordon to Judge Bork, December 17, 1982 768
Declaration of Paul Larkin, September 25, 1987 769
Declaration of John Harrison, September 28, 1987 772
Affidavit of Ruth Luff, September 25, 1987 775
Letter from Senator Simpson to Joan E. Bertin, September 30, 1987 779
Press release of the American Civil Liberties Union, September 29, 1987 781
Letter from Joan E. Bertin to Chairman Biden, September 29, 1987 782
"Memorandum and Analysis: OCAWw. American Cyanamid Co.," prepared by
the American Civil Liberties Union 783
Letter from Joan E. Bertin to Senator Simpson, September 23, 1987 785
Letter from Betty J. Riggs to Senators, September 28, 1987 788
Saturday, September 19, 1987
Witness
bia Circuit 795
Questioning by:
Senator Heflin 795
Senator Specter 815
Senator Kennedy 842
Senator Hatch 845
Senator Simpson 850
VIII
Closing Statements
p
Bork, Robert H., United States Circuit Court Judge for the District of Colum- w
bia Circuit 855
Simpson, Honorable Alan K 856
Speech by Robert Bork, "The Crisis in Constitutional Theory: Back to the
Future," The Philadelphia Society, April 3, 1987 797
Letter from Judge James Gordon to Chairman Biden, August 24, 1987 808
Compilation of "Unanimous Pro-Labor Law Cases," prepared by Senator
Hatch 846
Monday, September 21, 1987
Witnesses
Coleman, William T., O'Melveny & Myers, Washington, D.C 867
Questioning by:
Senator Thurmond 954, 964
Senator Hatch 955, 964
Chairman Biden 962, 992, 1001
Senator Simpson 968
Senator Heflin 983
Senator Specter 988, 992
Senator Kennedy 999
Jordan, Barbara, professor, University of Texas, Austin 1004
Questioning by:
Senator Kennedy 1046
Senator Specter 1046
Chairman Biden 1053
Young, Andrew, Mayor, Atlanta, Georgia 1067
Questioning by:
Chairman Biden 1078
Senator Leahy 1084
Marshall, Burke, professor, Yale University Law School 1087
Questioning by:
Chairman Biden 1099
Senator Hatch 1102
Levi, Edward H., professor, University of Chicago Law School 1111
Questioning by:
Senator Hatch 1120
Smith, William French, Gibson, Dunn & Crutcher, Los Angeles, California 1124
Questioning by:
Senator Leahy 1132
Chairman Biden 1136
IX
Page
Senator Simpson 1142
Katzenbach, Nicholas deB., Riker, Danzig, Scherer, Hyland & Perretti, Mor-
ristown, New Jersey 1146
Questioning by:
Senator Leahy 1149
Senator Hatch 1150
Senator Heflin 1151
Rogers, William P., Rogers & Wells, New York, New York 1160
Senator Hatch 1171
Chairman Biden 1174
Panel:
Tyler, Harold R., Jr., chairman, Standing Committee on Federal Judici-
ary of the American Bar Association 1184
Fiske, Robert, former chairman, Standing Committee on Federal Judici-
ary of the American Bar Association 1184
Questioning by:
Senator Leahy 1193
Senator Hatch 1196
Senator Heflin 1208
Prepared Statements
Coleman, William T 874
Young, Andrew 1071
Marshall, Burke 1090
Levi, Edward H 1115
Smith, William French 1128
Rogers, William 1165
Brownell, Herbert 1261
Rights of Minorities," submitted by Senator Simpson 975
Rights of Women," submitted by Senator Simpson 978
Written questions submitted by Senator Simpson in connection with William
Coleman's testimony 979
Article by Charles L. Black, Jr., "A Note on Senatorial Consideration of
Supreme Court Nominees," 79 Yah Law Journal 657 (1970) 1007
Supreme Court decision in Olmstead v. United States, 277 U.S. 438 (1928) 1015
Speech by Robert Bork at the Mayflower Hotel, May 1974 1054
Letter from the American Bar Association to then-Chairman Strom Thur-
mond regarding the nomination of Antonin Scalia to be Associate Justice of
the Supreme Court of the United States, August 5, 1987 1218
Letter from the American Bar Association to then-Chairman Strom Thur-
mond regarding the nomination of William Hubbs Rehnquist to be Associ-
ate Justice of the Supreme Court of the United States, July 29, 1986 1223
Letter from the American Bar Association to Chairman Joseph R. Biden, Jr.
regarding the nomination of Robert H. Bork to be Associate Justice of the
Supreme Court of the United States, September 21, 1987 1228
American Bar Association reprint, "Standing Committee on the Federal Judi- Page
ciary, How it Works" 1235
Minutes of the American Bar Association's meeting with Judge Bork (1987
nomination) 1250
Letter from Harold Tyler to Senator Metzenbaum, September 4, 1987 1255
Letter from Senator Metzenbaum to Harold Tyler, August 26, 1987 1256
Excerpts from William Coleman's Memorandum on Robert Bork for the 1982
American Bar Association Report 1258
Telegram from Herbert Brownell to Chairman Biden, September 20, 1987 1260

Witnessess
Tribe, Laurence H., professor, Harvard Law School 1267
Questioning by:
Chairman Biden 1297
Senator Hatch 1303
Senator Leahy 1321
Senator Heflin 1328
Panel:
Hills, Carla A., Weil, Gotshal & Manges, Washington, D.C 1347
McConnell, Michael, professor, University of Chicago Law School 1354
Born, Gary, adjunct professor, University of Arizona Law School 1364
Campbell, Thomas, professor, Stanford Law School 1367
Stewart, Richard, professor, Harvard Law School 1369
Questioning by:
Chairman Biden 1371
Senator Hatch 1373
Senator Leahy 1408
Panel:
Bollinger, Lee, dean, University of Michigan Law School 1987
Styron, William, author 1989
Rauschenberg, Robert, artist 1998
Questioning by:
Chairman Biden 2006
Senator Leahy 2013
Panel:
Baldwin, Donald, executive director, National Law Enforcement Council... 2016
Stokes, Dewey, president, Fraternal Order of Police 2023
Vaughn, Jerald R., executive director, International Association of Chiefs
of Police 2038
Fuesel, Robert, national president, Federal Criminal Investigators Asso-
ciation 2047
Bellizzi, John J., executive director, International Narcotics Association
of Police Organizations 2052
Hughes, John L., director, National Troopers Coalition 2061
XI
Carrington, Frank, executive director, Victims' Assistance Legal Organi- PaKe

zation 2068
Bittick, L. Cary, executive director, National Sheriffs' Association 2078
Questioning by:
Prepared Statements
Tribe, Laurence H 1272
Hills, Carla 1350
McConnell, Michael 1358
Styron, William 1992
Rauschenberg, Robert 2000
Baldwin, Donald 2019
Stokes, Dewey 2026
Vaughn, Jerald R 2040
Fuesel, Robert 2049
Bellizzi, J o h n J 2055
Hughes, J o h n L 2063
Carrington, F r a n k 2069
Bittick, L. Cary 2079
Letter to Chairman Biden and Senator Thurmond from 100 law professors
opposing Judge Bork's confirmation as Associate Justice of the Supreme
Court, September 22, 1987 1335
Letter to Chairman Biden and Senator Thurmond from 32 law school deans
opposing Judge Bork's confirmation as Associate Justice of the Supreme
Court, September 22, 1987 1342
Statement by Senator Hatch regarding Katzenbach v. Morgan 1375
Report of the Subcommittee on Separation of Powers on the Human Life Bill,
S. 158, 97th Cong., 1st Sess. (1981) 1376
Essays on Judge Bork's views submitted by Carla Hills 1412
Carla Hills, "Take the Trouble to Understand" 1415
Michael W. McConnell, "The First Amendment Jurisprudence of Judge
Robert Bork" 1419
Mary Ann Glendon, "The Probable Significance of the Bork Appointment
for Issues of Concern to Women" 1440
Thomas J. Campbell, "Analysis of Judge Bork's Labor Law Opinions" 1450
Daniel D. Polsby, "Analysis of Judge Robert Bork's Opinions on Stand-
ing" 1470
Gary B. Born, "Robert H. Bork's Civil Rights Record" 1485
Richard B. Stewart, "The Judicial Performance of Robert Bork in Admin-
istrative and Regulatory Law" , 1520
Robert A. Anthony, "Judge Bork's Decisions in Which He Wrote No
Opinion: An Analysis of the Regulatory and Benefit Cases'' 1548
Gary Lawson, "Judge Bork, Separation of Powers and Special Prosecutor
Bills" 1566
Bernard M. Meltzer, "The ACLU's Evaluation of Judge Bork's Employ-
ment Decisions" : 1579
Joseph D. Grano, "The 'Response to White House Analysis of Judge
Bork's Record:' A Critical Appraisal" 1596
"Response Prepared to White House Analysis of Judge Bork's Record," Sep-
tember 3, 1987 1630
Public Citizen Litigation Group book, The Judicial Record of Judge Robert H.
Bork, August 1987 1725
AFL--CIO Executive Council statement, "Opposition to the Nomination of
Robert H. Bork to be an Associate Justice of the Supreme Court of the
United States," with supporting memoranda, August 17, 1987 1880
Magazine article by Renata Adler, "Coup at the Court," The New Republic,
September 14 and 21, 1987 1932
American Civil Liberties Union "Report on the Civil Liberties Record of
Judge Robert H. Bork," September 9, 1987 1936
Statement of Ordway P. Burden, president, Law Enforcement Assistance
Foundation 2085
XII
Letter to Chairman Biden from Alan Nelson, president, National Association Page
of Federal Investigators, and accompanying resolution, September 10, 1987 .. 2089
Witnesses
Burger, Honorable Warren E., former Chief Justice of the United States
Supreme Court 2096
Questioning by:
Chairman Biden 2098
Senator Hatch 2103
Senator Leahy 2110
Senator Heflin 2113
Panel:
Franklin, John Hope, professor, Duke University 2118
Leuchtenburg, William, professor, University of North Carolina 2128
Dellinger, Walter, professor, Duke University Law School 2136
Questioning by:
Chairman Biden 2138
Senator Hatch 2141
Senator Leahy 2145
Cutler, Lloyd N., Wilmer, Cutler & Pickering, Washington, D.C 2158
Questioning by:
Chairman Biden 2176, 2181, 2188, 2199
Senator Hatch 2182
Senator Leahy 2188
Senator Heflin 2192
Panel:
Thompson, James, Governor of Illinois 2202
Frank, John P., Lewis & Roca, Phoenix, Arizona 2204
Foreman, Fred L., District Attorney of Lake County, Illinois 2221
Questioning by:
Senator Leahy 2234
Prepared Statements
Franklin, John Hope 2122
Leuchtenburg, William 2132
Cutler, Lloyd N 2161
Frank, John P 2208
Foreman, Fred L 2222
XIII

Pa e
Newspaper article by Lloyd N. Cutler, "Saving Bork from Both Friends and K
Enemies," The New York Times, J u l y 16, 1987 2171
Newspaper article by Lloyd N . Cutler, "Opinion: T h e Battle Over Bork," The
American Lawyer, September 1987 2173
Newspaper article by Lloyd N. Cutler, "Judge Bork: Well Within the Main-
stream," The Washington Post, September 16, 1987 2175
Letter to the editor from Leonard Belter, The Washington Post, September 22,
1987 2233
Friday, September 25, 1987
Witnesses
Panel:
Smith, Chesterfield, Holland & Knight, Miami, Florida 2243
Meserve, Robert W., Palmer & Dodge, Boston, Massachusetts 2244
Kaufman, Robert, President, and Birnbaum, Sheila, Vice President, The
Bar Association of the City of New York 2259
Questioning by:
Chairman Biden 2265
Senator Kennedy , 2281
Senator Leahy 2291
Senator Hatch 2292
Sowell, Thomas, fellow, Hoover Institute 2310
Questioning by:
Senator Leahy 2316
Senator Hatch 2317
Chairman Biden 2320
Senator Heflin 2325
Panel:
Hufstedler, Shirley M., Hufstedler, Miller, Carlson & Beardsley, Los An-
geles, California 2331
Babcock, Barbara, professor, Stanford Law School 2344
Law, Sylvia, professor, New York University Law School 2354
Williams, Wendy, professor, Georgetown University Law Center 2369
Questioning by:
Senator Heflin 2387
Senator Hatch 2395
Senator Leahy 2407
Panel:
McDonald, Forrest, professor, University of Alabama 2412
Meador, Daniel, professor, University of Virginia Law School 2420
Priest, George, professor, Yale University Law School 2435
Simon, John G., professor, Yale University Law School 2445
Rotunda, Ronald, professor, University of Illinois Law School 2454
Questioning by:
Senator Heflin 2478
XIV
Page
Senator Leahy 2485
Chairman Biden 2488
Panel:
Fiss, Owen, professor, Yale University Law School 2491
Grey, Thomas, professor, Stanford University Law School 2514
Resnik, Judith, professor, University of Southern California Law School... 2528
Gewirtz, Paul, professor, Yale University Law School 2555
Bennett, Robert, dean, Northwestern University Law School 2595
Questioning by:
Senator Hatch 2615
Panel:
Rhyne, Charles S., Rhyne & Brown, Washington, D.C 2724
Shepherd, John C, Shepherd, Sandberg & Phoenix, St. Louis, Missouri 2735
Riley, Wallace O., Riley and Roumell, Detroit, Michigan 2748
Bland, Jr., James T., president, Federal Bar Association 2754
Questioning by:
Chairman Biden 2756
Prepared Statements
Meserve, Robert W 2248
Kaufman, Robert 2261
Hufstedler, Shirley 2336
Babcock, Barbara 2348
Law, Sylvia 2358
Williams, Wendy 2373
McDonald, Forrest 2415
Meador, Daniel 2423
Priest, George L 2439
Simon, John G 2448
Rotunda, Ronald D 2457
Fiss, Owen M 2495
Grey, Thomas C 2515
Resnik, Judith 2532
Gewirtz, Paul 2558
Bennett, Robert W 2597
Rhyne, Charles S 2727
Riley, Wallace D 2750
Letter from John W. Barnum to Senator Simpson, September 22, 1987 2269
Letter from John W. Barnum to Robert Kaufman, September 22, 1987 2270
"Statement by Members of the Association of the Bar of the City of New
York Repudiating the Unauthorized Action of its Executive Committee in
Opposing the Nomination of Judge Robert H. Bork to the Supreme Court of
the United States," September 22, 1987 2271
Letter from Kenneth Volk to Senator Simpson, September 24, 1987 2275
Letter from James T. Halverson and other previous chairmen of the Section
of Antitrust Law of the American Bar Association to Chairman Biden,
August 7, 1987 2276
Newspaper article, "New York Bar Association Split Over Stand on Bork,"
The New York Times, September 24, 1987 2295
Newspaper article, "Borks Credentials Beyond Challenge; Opponents Use
Political Standards," New York Law Journal, September 28, 1987 2296
Letter from Diane C. Leibe to Senator Grassley, September 18, 1987 2304
Letter from Diane C. Leibe to committee members, undated 2305
Letter from Robert M. Kaufman to Chairman Biden, September 28, 1987 2308
Article by Paul Gewirtz, "Senators Should Use Activist Approach in Judging
Nominees," Legal Times, August 10, 1987 2591
Letter from Emma C. Jordan, president of the Society of American Law
Teachers, to Chairman Biden, September 22, 1987 2607
XV
Society of American Law Teachers, list of "Law Professors Who Subscribe to 1>a e
the Society of American Law Teachers' Letter of Opposition to the Nomina- s
tion of Judge Robert H. Bork to the United States Supreme Court" 2608
Letter from Clark Byse to Senator Hatch, September 17, 1987 2616
Letter from attorneys who worked with Robert Bork in the Office of the
Solicitor General to Chairman Biden, September 17, 1987 2619
Letter from Charles M. Williamson to Senator Hatch, with attachments,
September 21, 1987 2624
Letter from William W. Falsgraf to Chairman Biden, September 18, 1987 2737
Letter from S. Shepherd Tate to Chairman Biden, September 18, 1987 2738
Letter from Leonard S. Janofsky to Chairman Biden, September 18, 1987 2739
Letter from Earl F. Morris to Chairman Biden, September 18, 1987 2740
Letter from James D. Fellers to John C. Shepherd, September 18, 1987 2741
Telegram from Charles S. Rhyne to President Reagan, September 13, 1987 2742
Article by John C. Shepherd, "In Support of Bork," National Law Journal,
September 21, 1987 2744
Monday, September 28, 1987
Witnesses
Panel:
Eagleton, Senator Thomas, professor, Washington University 2760
Sunstein, Cass, professor, University of Chicago Law School 2765
Questioning by:
Senator Leahy 2794
Senator Heflin 2796
Senator Hatch 2797
Bell, Griffin B., King & Spalding, Atlanta, Georgia 2805
Questioning by:
Senator Hatch 2813
Senator Leahy 2820
Senator Heflin 2824
Kurland, Philip B., professor, University of Chicago Law School 2831
Questioning by:
Chairman Biden 2849
Senator Hatch 2855
Panel:
Thornburgh, Richard, director, John F. Kennedy Institute of Politics 2863
Randolph, A. Raymond, Pepper, Hamilton & Scheetz, Washington, D.C 2868
LaFontant, Jewel S., Vedder, Price, Kaufman & Kammholz, Chicago,
Illinois 2884
Smith, Stuart A., Shea & Gould, New York, New York 2892
Questioning by:
Panel:
Bator, Paul, professor, University of Chicago Law School 2910
Monaghan, Henry, professor, Columbia University Law School , 2926
BeVier, Lillian Riemer, professor, University of Virginia Law School 2927
Levin, A. Leo, professor, University of Pennsylvania Law School 2935
XVI
Page
Oaks, Dallin H., former professor, University of Chicago Law School 2941
Questioning by:
Senator Leahy 2951
Senator Hatch 2952, 2958, 2963
Senator Heflin 2954
Senator DeConcini 2962, 2975
Panel:
Krane, Howard G., Kirkland & Ellis, Chicago, Illinois 2980
Carlock, George Reed, Ryley, Carlock & Applewhite, Phoenix, Arizona 2986
Questioning by:
Dean, Kenneth, pastor, First Baptist Church, Rochester, New York 2995
Questioning by:
Prepared Statements
Eagleton, Thomas 2762
Sunstein, Cass R 2767
Kurland, Philip B 2835
Thornburgh, Richard 2865
Randolph, A. Raymond 2870
LaFontant, Jewel 2887
Smith, Stuart 2895
Bator, Paul M 2912
BeVier, Lillian Riemer 2930
Levin, A. Leo 2936
Oaks, Dallin H 2944
Krane, Howard 2981
Carlock, George Reed 2989
Dean, Rev. Kenneth R 2999
Resume of Jewel S. LaFontant 2902
Letter from Edith-Marie Dolan to Senator Hatch, September 28, 1987 2968
Telegram from Professor Lucinda Finley, Yale Law School, to Chairman
Biden, September 24, 1987 2977
Telegram from Professor Carol Gilligan, Harvard University Graduate School
of Education, September 24, 1987 2978
Letter from Warren I. Cikins to The Washington Post, July 28, 1987 3017
Letter to the Editor from Joshua O. Haberman, The Washington Post, August
6, 1987 3018
Witnesses
Panel:
Kay, Herma Hill, professor, Boalt School of Law, University of California,
Berkeley 3025
Richards, David, A.J., professor, New York University Law School 3047
Sullivan, Kathleen, professor, Harvard Law School 3070
Questioning by:
Senator Leahy 3104
XVII
Pane
Senator Heflin 3108
Richardson, Elliot L., Milbank, Tweed, Hadley & McCloy, New York, New
York 3112
Questioning by:
Senator Heflin 3132
Senator Hatch 3133
Senator Leahy 3149
Panel:
Dymally, Honorable Mervyn, U.S. Congressman, State of California 3162
Conyers, Honorable John, Jr., U.S. Congressman, State of Michigan 3166
Fauntroy, Honorable Walter E., Delegate, District of Columbia 3175
Questioning by:
Chairman Biden 3187
Panel:
Ruth, Henry, counsel, Unisys 3192
Frampton, George, president, The Wilderness Society 3194
Questioning by:
Senator Kennedy 3204, 3209
Senator Leahy 3232, 3238
Panel:
Casper, Gerhard, former dean, University of Chicago Law School 3240
Davenport, Ronald, former dean, Duquesne Law School 3250
Frankino, Steven, dean, Villanova University Law School 3252
Holland, Maurice, dean, University of Oregon Law School 3257
Morgan, Thomas, dean, Emory University Law School 3269
Rostow, Eugene, professor emeritus, former dean, Yale University Law
School 3279
Sandalow, Terrance, former dean, University of Michigan Law School 3289
Questioning by:
Panel:
Areeda, Phillip, professor, Harvard Law School 3313
Baker, Donald I., Sutherland, Asbill & Brennan, Washington, D.C 3314
Halverson, James T., Shearman & Sterling, New York, New York 3328
Kauper, Thomas, professor, University of Michigan Law School 3338
Questioning by:
Chairman Biden 3345
Prepared Statements
Kay, Henna Hill 3027
Richards, David A.J 3050
Sullivan, Kathleen M 3072
Richardson, Elliot L 3116
Dymally, Mervyn M - 3163
Conyers, John 3168
Fauntroy, Walter E 3179
Frampton, George T., Jr 3197
Casper, Gerhard 3247
Davenport, Ronald 3251
XVIII
Page
Frankino, Steven P 3254
Holland, Maurice J 3261
Morgan, Thomas D 3273
Rostow, Eugene V.....: 3282
Sandalow, Terrance 3292
Baker, Donald 1 3317
Halverson, James T 3331
Kauper, Thomas E 3340
Letter from Laurence Gold of the AFL-CIO to Senator Metzenbaum, Septem-
ber 28,1987 3090
AFL~CIO "Memorandum on Judge Bork's Opinion and Testimony Concerning
the American Cyanamid Case" 3091
Federal regulations pertaining to the creation of the Watergate Special Pros-
ecution Force, May 31,1973 3125
Hearings before the Committee on the Judiciary, Nomination of Elliot Rich-
ardson to be Attorney General, 93d Cong., 1st Sess., May 9, 10, 14, 15, 21 and
22,1973, p. 185 3128
Memorandum, "67 Flaws of the Bork Ad," submitted by Senator Hatch 3135
Memorandum from Morton Halperin and Jerry Berman, ACLU, to Senator
Simpson, September 28,1987 3154
Letter from Morton Halperin and Jerry Berman, ACLU, to the Editor, City
Paper, September 28, 1987 3155
Federal regulation pertaining to the abolition of the Office of the Watergate
Special Prosecution Force, October 23,1973 3210
Statement of Philip A. Lacovara, September 1987 3214
Statement of Henry E. Peterson, September 22,1987 3222
Affidavit of Ralph K. Winter, September 25,1987 3225
Letter from Gerhard Casper and Robert Mundheim to Chairman Biden,
August 25, 1987 3241
Letter to the Editor from Eugene V. Rostow, The New York Times, August 3,
1987 (published and unpublished) 3287
Article by Donald I. Baker, "The Lawyer's Bookshelf: Review of The Antitrust
Paradox," New York Law Journal, July 7, 1978 3288
Witnesses
Panel:
Abrams, Robert, Attorney General of the State of New York 3414
Brown, Charles, Attorney General of the State of West Virginia 3430
Pitofsky, Robert, dean, Georgetown University Law Center 3441
Questioning by:
Chairman Biden 3442, 3509, 3515, 3521
Senator Grassley 3523, 3529
Senator Leahy 3528
Senator Hatch 3534
Senator Heflin , 3535
LaHaye, Beverly, Concerned Women of America 3537
Questioning by:
Chairman Biden 3552
Martinez, Vilma S., Munger, Tolles & Olsen, Los Angeles, California 3576
Questioning by:
XIX
Page
Senator Heflin 3618
Chairman Biden 3621
Handler, William, Rabbi, Union of Orthodox Rabbis of the United States and
Canada 3626
Questioning by:
Senator Leahy 3631
Panel:
Clay, John, John C. Roberts, and John Boley, Lawyers for the Judiciary.... 3688
Questioning by:
Senator Simon 3787
Senator Heflin 3790
Innis, Roy, Congress of Racial Equality 3792
Questioning by:
Panel:
Daskal, Dmitri G., counsel, Service Station Dealers of America; The
Pocketbook Coalition 3809
Foer, Albert A., president, Melart Jewelers 3824
Brownell, Herbert, Lord, Day & Lord, New York, New York 3838
Questioning by:
Panel:
Kliesmet, Robert, International Union of Police Associations 3850
Hampton, Ronald, National Black Police Association 3860
Johnson, Harold, National Organization of Black Law Enforcement Ex-
ecutives 3863
Questioning by:
Closing Statements
Kennedy, Honorable Edward M 3873
Thurmond, Honorable Strom 3893
Prepared Statements
Abrams, Robert 3417
Brown, Charles G 3432
Pitofsky, Robert 3443
LaHaye, Beverly 3539
Martinez, Vilma S 3580
Lawyers for the Judiciary 3692
Innis, Roy 3794
Daskal, Dimitri G 3811
Foer, Albert A 3826
Brownell, Herbert 3839
Kliesmet, Robert B 3853
Hampton, Ronald 3862
Johnson, Harold 3865
XX

List of "Law Schools at Which Law Professors Signed Letters In Opposition to Page
Robert Bork's Nomination to the Supreme Court" 3351
List of "Law Professors Who Signed Letters in Opposition to Robert Bork's
Nomination to the Supreme Court" 3355
Statement of Maxwell M. Blecher 3465
Statement of Lawrence A. Sullivan, September 1987 3479
Statement of Herman Schwartz, September 29, 1987 3491
Article by H e r m a n Schwartz, "The Frantic Reflagging of Bork," The Nation,
September 19, 1987 3504
Article by Jamie Kalven, "Bork v. The First," The Nation, September 19,
1987 3507
Excerpt from Robert Bork's book, The Antitrust Paradox, p. 407 3520
Hearings Before the Committee on the Judiciary, "The Selection and Confir-
mation of Federal Judges," 97th Cong., 2nd Sess., J a n u a r y 27, February 12,
26 and March 11, 24, 31, p. 2091-92 3531
Transcript of Proceedings, Subcommittee on Antitrust, Monopolies and Busi-
ness Rights, S. 567, Malt Beverage Interbrand Competition Act, August 4,
1987, p. 57 3533
Harris Survey, "Public Opposes Bork Nomination by 59-27%," September 28,
1987 3547
"Response to the Statement of John P. Frank," prepared by Senator Hatch 3554
Materials submitted by Rabbi Handler 3642
Telegram from Herbert Brownell to Chairman Biden, September 20, 1987 3839
Letter from Professor Stephen J. Schulhofer to Chairman Biden, September
28, 1987 3844
"Response to Submission by John P. Frank," prepared by Senator H u m p h r e y . 3876
List of majority and minority staff members who assisted with the hearings.... 3894
POST-HEARING CORRESPONDENCE BETWEEN JUDGE BORK
AND THE COMMITTEE
Page
Letter from Judge Bork to Chairman Biden regarding equal protection and
right to privacy, October 1, 1987 3896
Letter from Judge Bork to Chairman Biden regarding Vander Jagt v. O 'Neill,
with attachments, October 1, 1987 3911
Letter from Judge Bork to Chairman Biden in response to Senator Weicker's
inquiry regarding the religion clauses, October 1, 1987, with letter from
Senator Weicker, September 11, 1987 3933
Letter from Judge Bork to Chairman Biden in response to Senator Leahy's
inquiry regarding timely filings, October 2, 1987, with attachments and
with letter from Senator Leahy, September 23, 1987 3937
Letter from Judge Bork to Chairman Biden in response to Senator Byrd's
inquiry regarding campaign finance, October 5, 1987 3948
Letter from Judge Bork to Chairman Biden in response to Senator Simon's
inquiry regarding the televising of Supreme Court proceedings, October 5,
1987, with letters from Senator Simon 3954
Letter from Judge Bork to Chairman Biden regarding unfair advertising,
October 5, 1987 3957
Letter from Judge Bork to Chairman Biden in response to Senator Metz-
enbaum's inquiry regarding the Second Amendment, October 5, 1987 3958
(XXI)
ADDITIONAL SUBMISSIONS FOR THE RECORD
Page
Ad Hoc Committee for Principled Discussions of Constitutional Issues:
Letter from Sidney Hook to Chairman Biden, September 28, 1987 3959
Statement, September 28, 1987 3960
Agudath Israel of America:
Memorandum, September 21, 1987 3964
Allegaert, Winthrop J.:
Letter to Chairman Biden, September 22, 1987 3973
York Repudiating the Unauthorized Action of its Executive Committee
in Opposing the Nomination of Judge Robert H. Bork to the Supreme
Court of the United States," September 22, 1987 3974
Alliance for Justice:
Statement 3978
American-Arab Anti-Discrimination Committee:
Statement of Albert Mokhiber, October 5, 1987 3987
American Association of University Women:
Statement of Sarah Harder, October 1, 1987 3990
American Civil Liberties Union:
Statement, October 5, 1987 3995
"Report on the Civil Liberties Record of Judge Robert H. Bork", Septem-
ber 9, 1987 4003
"The Essential Judge Bork. A Report on the Testimony of Judge Robert
H. Bork Before the Senate Judiciary Committee and an Analysis of His
Constitutional Doctrine," October 2, 1987 4053
American Jewish Congress:
Statement of Marvin Frankel, September 30, 1987 4103
American Medical Student Association:
Statement of Drs. P. Preston Reynolds and Grace Heitsch, September 30,
1987 , 4130
Americans for Democratic Action:
Statement of Joseph Rauh, October 1987 4134
Americans for Religious Liberty:
Statement of Ed Doerr, September 30, 1987 4147
Antitrust Law & Economics Review:
Letter from Charles E. Mueller to Senator Kennedy, August 13, 1987 4151
Editorial, "Foreword: Antitrust, the Supreme Court, and the Bork
Factor" 4152
Antitrust professors in opposition to the nomination:
Asian American Bar Association of the Greater Bay Area:
Letter from Hon Chew, September 15, 1987 4170
Attorneys in opposition to the nomination:
Attorneys in Washington, D.C. in opposition to the nomination:
Letter to Chairman Biden, October 5, 1987 4178
Avins, Alfred:
Statement 4182
Becker, Mary:
Berkeley Commission on Peace and Justice:
Memorandum, with attachments, September 30, 1987 4185
B'nai B'rith Women:
Statement, September 1987 4204
Bolton, John:
Letter to Judge Bork, September 28, 1987 4208
(XXII)
XXIII
Bork, Judge Robert H.: Page

Letter to Judge Tyler, September 28, 1987 4210
Brigham Young University, J. Reuben Clark Law School:
Letter from faculty members, September 28, 1987 4211
Broderick, Albert:
"Blind Spot for Blacksand Women" 4212
Brown, Harold:
"Controversy Over Bork's Nomination No Surprise," Massachusetts Law-
yers Weekly, September 7, 1987 4224
Business and Professional Women's Clubs/USA:
Letter from Linda Colvard Dorian to Chairman Biden, October 2, 1987 4227
Statement 4229
Carter, Honorable Jimmy:
Chicago Council of Lawyers:
Letter to Senator Simon, September 11, 1987 4251
Report, September 11, 1987 4252
Children's Defense Fund:
Statement of Marian Wright Edelman, September 28, 1987 4264
Childs, Marjorie:
Statement 4281
Christofferson, Clyde:
Letter to th e Editor, The Wall Street Journal, September 26, 1987 4287
Citizens' Advisory Committee, The District of Columbia Bar:
Letter from Chauncey Fortt to Chairman Biden, October 2, 1987 4292
Citizens Against Bork:
Tape transcription 4294
Citizens for Decency Through Law, Inc.:
Statement 4302
Citizens for God & Country:
Statement, with attachments, September 21, 1987 4312
Clinton, Governor Bill:
Statement 4320
Collins, Cardiss:
Statement 4328
Committee for a Fair Confirmation Process:
"A Response to t he Majority Report in th e Senate Confirmation Proceed-
ings of Judge Robert H. Bork," November 2, 1987 4332
Common Cause:
"Why t h e United States Senate Should Not Consent to t h e Nomination of
Judge Robert H. Bork to be a Justice of th e Supreme Court," Septem-
ber 1987 4457
Community Free Democrats:
Conover, Bev and Elton M., Jr.:
Letter to committee members, September 29, 1987 4473
Crown, Joseph:
Letter to the Editor, The Mexico City News, August 28, 1987 4479
"The Supreme Court Crisis: The Bork Nomination," August 30, 1987 4480
Davidow, Robert P.:
Statement 4483
Denominational Ministry Strategy:
Letter from Rev. D. Douglas Dove and Rev. Daniel N. Solberg to Diana
Huffman, September 15, 1987 4491
Letter from Rev. D. Douglas Dove, Rev. Daniel N. Solberg and Charles
Honeywell to Diana Huffman, October 7, 1987 4493
District of Columbia Democratic State Committee:
Letter from James M. Christian to Chairman Biden, September 18, 1987... 4495
Resolution 4496
Drach, Mitchell R.:
Dunn, James, et al.:
Dean, Rev. Kenneth, "Bork Thrives on Confrontation, Lives for the Spot-
light," Rochester Times-Union, August 14, 1987 4500
Executive Leadership Council:
XXIV
Pa e
Federal regulations (OSHA) pertaining to occupational exposure to lead, No- e
vember 14 and 21, 1987 4510
Federation of Women Lawyers Judicial Screening Panel, Women's Legal De-
fense Fund, NOW Legal Defense and Education Fund, Equal Rights Advo-
cates:
Feeney, Floyd and Mahoney, Barry:
"The Lawfulness of Robert Bork's Firing of the Watergate Special Pros-
ecutor," October 6, 1987 4554
Feinberg, Margo A.:
Letter to Chairman Biden regarding views of local California bar associa-
tions, September 22, 1987 4592
Flynn, John J.:
Statement 4595
Foster, Byron C:
Freedman, Monroe H.:
Letter to Chairman Biden, September 29, 1987 4626-
Goldstein, Joseph:
"That Was the Real Bork Who Testified," The New York Times, Septem-
ber 27, 1987 4627
Gordon, Judge James F.:
Affidavit, October 2, 1987 4628
Hazard, Geoffrey C, Jr.:
Hispanic National Bar Association:
Statement of John Martinez 4639
Hufstedler, Shirley M.:
Letter to Senator Kennedy, October 3, 1987 4648
Lawyers' Committee for Civil Rights Under Law:
Letter from Conrad K. Harper and Stuart J. Land to Chairman Biden,
September 30, 1987 4661
Statement of Conrad K Harper, for Individual Members of the Lawyers'
Committee for Civil Rights Under Law, and Individual Members of
Local Lawyers' Committees, September 29, 1987 4663
"On the Nomination of Judge Robert H. Bork as an Associate Justice of
the United States Supreme Court" 4680
September 14, 1987 4692
"Memorandum on the Nomination of Judge Robert H. Bork as an Associ-
ate Justice to the United States Supreme Court" 4693
Leadershp Conference on Civil Rights:
Statement of Benjamin Hooks, October 1987 4739
"Bork v. Bork," with supplement 4745
"The Bork Record on Labor" 4752
"Summary of Some of the Major Arguments Against the Nomination of
Robert Bork" 4757
Lebron, Michael:
Letter to Diana Huffman, September 19, 1987 4761
Lee, Joseph D.:
Affidavit, with attachments, October 2, 1987 4762
Licht, Richard A.:
Statement 4771
"Brief in Opposition to the Nomination of Judge Bork to the Supreme
Court" 4776
Lipshutz, Robert J.:
Maryland Association of Equal Opportunity Personnel:
Statement of Yvonne A. Edwards 4792
McAninch, William S.:
McLaughlin, Francis X.:
Statement, with attachments 4797
XXV
Mental Health Law Project: Pa

Letter from Norman S. Rosenberg to Chairman Biden, September 15, ge
1987 4806
"Judge Bork and the Rights of Disabled People" 4807
Letter from Leonard S. Rubenstein to Diana Huffman, October 2, 1987 4818
Statement of Leonard S. Rubenstein, October 5, 1987 4822
Mexican American Legal Defense and Educational Fund:
Statement of Antonia Hernandez, October 5, 1987 4838
Minnesota Coalition of 372,000 to Stop Bork:
Letter of Rev. Lee S. Wiskochil to Chairman Biden, September 25, 1987 4852
Attachments 4853
Minnick, John B.:
Letter to Senator Hatch, September 22, 1987 4886
Letter to Senator Hatch, with attachments, August 19, 1987 4887
Minority Business Enterprise Legal Defense and Education Fund, Inc.:
Statement 4896
NAACP Legal Defense and Educational Fund, Inc.:
"Bork v. Bork. A Comparison of Judge Bork's Confirmation Testimony
with His Previous Speeches and Articles," with People for the Ameri-
can Way Action Fund, September 1987 4908
Letter from Elaine R. Jones and Eric Schnapper to Chairman Biden,
October 5, 1987 4972
"Most Recent Date of Bork Criticism of Supreme Court Constitutional
Precedents," with attachments, October 5, 1987 4974
Statement of Julius L. Chambers, October 5, 1987 5042
Statement of James M. Nabrit, III, October 8, 1987*. 5055
Nader, Ralph:
Letter to Chairman Biden, October 12, 1987, with attachments 5059
Nation Institute:
Letter from Emily Sack to Chairman Biden, October 1, 1987 5083
"The Bork Report. The Supreme Court Watch Project's Analysis of the
Record of Judge Robert H. Bork" 5084
National Abortion Rights Action League:
"The Opposition to Bork: The Case for Women's Liberty" 5266
"Bork as 'Confirmation-day Moderate,' " September 16, 1987 5307
National Association for the Advancement of Colored People:
Statement of Althea T.L. Simmons, September 1987 5309
Nathaniel R. Jones, "The Desegregation of Urban Schools Thirty Years
After Brown," 55 Colorado Law Review 4, Summer 1984, 525, 537-541.... 5338
Olive Taylor, "Two Hundred Years, An Issue: Ideology in the Nomination
and Confirmed Process of Justices to the Supreme Court of the United
States," September 1987 5382
J. Clay Smith, Jr., "A Response to Professor Robert Bork's 'Giving Mean-
ing to the Constitution: Competing Visions of Judicial Review,' " June
12, 1987 5482
J. Clay Smith, Jr., "Toward Pure Legal Existence: Blacks and the Consti-
tution," June 18, 1987 5490
Letter from Howard University School of Law faculty members to Chair-
man Biden and Senator Thurmond, September 17, 1987 5511
National Association of Criminal Defense Lawyers:
Statement of Joseph Tydings 5514
National Association of Evangelicals:
Statement of Robert P. Dugan, Jr., October 2, 1987 5526
National Bar Association:
Letter from Walter L. Sutton, Jr. to Chairman Biden, September 29, 1987. 5532
National Black Caucus of State Legislators:
Statement of Hon. David P. Richardson, Jr., September 1987 5533
National Coalition for Women and Girls in Education:
Letter from Jill Miller to Chairman Biden, September 25, 1987 5538
National Conference of Black Lawyers and Medgar Evers College for Law and
Social Justice:
Statement 5541
National Council of the Churches of Christ:
Letter from Bishop Philip R. Cousin and Dr. Arie R. Brouwer to Chair-
man Biden, October 1, 1987 5549
Letter from James A. Hamilton to Chairman Biden, October 1, 1987 5550
XXVI
Pa e
"Resolution Opposing the Nomination of Judge Robert H. Bork to the s
Supreme Court of the United States" 5551
National Conference of Women's Bar Associations:
Statement, September 17,1987 5571
National Council of Jewish Women:
Statement 5575
National Education Association:
Letter from Kenneth F. Melley to Chairman Biden, October 1,1987 5577
Statement, October 1,1987 5578
National Family Planning and Reproductive Health Association, Inc.:
Statement of Scott R. Swirling, October 5,1987 5585
National Lawyers Guild:
Statement of Haywood Burns, with attachments 5588
National Press Inc.:
Statement of Joel D. Joseph, October 3,1987 5600
National Urban League, Inc.:
Statement of Douglas G. Glasgow, October 5,1987 5605
National Women's Law Center:
Statement of Marcia D. Greenberger, Suzanne E. Meeker and Ellen J.
Vargyas, with attachment, October 5,1987 5611
National Women's Political Caucus:
Statement of Irene Natividad, October 5,1987 5663
Natural Resources Defense Council:
Letter from Adrian W. DeWind to Chairman Biden, September 22,1987.... 5670
Memorandum, September 22,1987 5673
New York State Defenders Association, Inc.:
Letter from Wilfred R. O'Connor to Chairman Biden, September 16, 1987 . 5683
Nolan, Robert L.:
Letter to Chairman Biden, September 21,1987 5684
Patriotic Majority:
"The Case of Bork Versus the American Revolution" 5685
Pearce, Jack:
Letter to Chairman Biden, August 17,1987 5688
"Recommendation that Judge Robert Bork Not be Confirmed as an Asso-
ciate Justice of the United States Supreme Court on the Basis of
Deficiencies in His Approach to Interpretation of the Antitrust Laws"... 5692
People for the American Way Action Fund:
Statement of John R. Buchanan, October 1987 5701
"Judge Bork's Views Regarding Supreme Court Constitutional Prece-
dent," with the NAACP Legal Defense and Educational Fund, Inc.,
September 1987 5742
Physicians Forum, Inc.:
Pilpel, Harriet F.:
Planned Parenthood Federation of America:
Statement of Faye Wattleton, October 5, 1987 5893
Popeo, Daniel J. and Kamenar, Paul D.:
"The Questionable Role of the ABA in the Judicial Selection Process" 5898
Public Citizen Litigation Group:
"Judge Bork's Civil Rights Record on the Court of Appeals" 5931
"Statistics Lie: Response to Statistics Frequently Cited by the White
House to Support Nomination of Judge Bork" 5939
"Statement of Alan B. Morrison Concerning Nader v. Bork and the
Nomination of Judge Robert H. Bork to be Associate Justice of the
Supreme Court of the United States," October 5, 1987 5941
Puerto Rican Legal Defense and Education Fund, Inc.:
Roberts, John C:
"Judge Bork's Legal Philosophy" 6008
San Francisco Lawyers' Committee for Urban Affairs:
Letter from Mark N. Aaronson to Chairman Biden, October 1, 1987 6016
"Resolution of the Executive Committee in Opposition to the Nomination
of Robert H. Bork to the Supreme Court of the United States" 6017
Schauer, Frederick:
XXVII
Pa e
Schwartz, Louis B.: s
Letter to Senator Leahy, September 10, 1987 6022
"Bork: Why Conservatives Should Oppose Him" 6023
"Moderate Bork? Defender of the First Amendment?" 6027
Simon, John G.:
Sinclair, I.B.:
Memorandum, with attachments, October 6, 1987 6032
Strong, Jerome A.:
Statement 6049
Suffolk University Law School:
"Report on the 'Judge Bork Survey' of Constitutional Law Professors,"
October 5, 1987 6058
Tachau, David Brandeis:
Affidavit, October 1, 1987 6062
United Automobile, Aerospace & Agricultural Implement Workers of Amer-
ica, UAW, International Union:
Statement of Owen Bieber, September 1987 6078
United States Justice Foundation:
Statement of Gary G. Kreep 6085
University of Akron:
Letters from faculty members to Senator Metzenbaum 6086
University of California, Berkeley, School of Law:
Letter from faculty members to Chairman Biden and Senator Thurmond,
with attachments, September 15, 1987 6090
University of California, Davis, School of Law:
Letter from faculty members to Chairman Biden, September 16, 1987 6092
University of California, Santa Barbara:
Letter from members of the Chicano/Latino Faculty Caucus to Chairman
University of Texas at Austin Law School:
September 1, 1987 6099
University of Wisconsin Law School:
Letter from faculty members to committee members, September 16, 1987.. 6104
Volk, Kenneth H.:
Vorenberg, James:
Washington Council of Lawyers:
Letter from Dennis A. Henigan to Chairman Biden, September 18, 1987.... 6108
Washington Legal Foundation:
Weiss, Congressman Ted:
Wilken, Madeleine:
Letter to Chairman Biden and Senator Thurmond, September 9, 1987 6122
Wilkey, Malcolm:
Women's Bar Association of the State of New York:
Statement of Committee to Review the Nomination of Judge Robert H.
Bork, September 1987 6127
Yale Law School students:
Record of opposition to Judge Bork's confirmation, September 11, 1987 6144
Youth for Democratic Action:
Statement of Daniel Press, October 1987 6145
Zebley, John:
ALPHABETICAL INDEX OF WITNESSES, QUESTIONING AND
MATERIALS SUBMITTED FOR THE RECORD
Page
Abrams, Robert:
Prepared Statement 3417
Testimony 3414
Ad Hoc Committee for Principled Discussions of Constitutional Issues:
Letter from Sidney Hook to Chairman Biden, September 28, 1987 3959
Adler, Renata:
"Coup at the Court," The New Republic, September 14 and 21, 1987 1932
AFL-CIO:
Letter from Laurence Gold to Senator Metzenbaum, September 28, 1987 ... 3090
"Memorandum on Judge Bork's Opinion and Testimony Concerning the
American Cyanamid Case" 3091
"Opposition to the Nomination of Robert H. Bork to be an Associate
Justice of the Supreme Court of the United States," with supporting
memoranda, August 17, 1987 1880
Agudath Israel of America:
Memorandum, September 21, 1987 3964
Allegaert, Winthrop J.:
Alliance for Justice:
Statement 3978
American-Arab Anti-Discrimination Committee:
Statement of Albert Mokhiber, October 5, 1987 3987
American Association of University Women:
Statement of Sarah Harder, October 1, 1987 3990
American Bar Association:
Testimony of Harold R. Tyler, Jr 1184
Letter from Harold R. Tyler, Jr. to Chairman Biden regarding the nomi-
nation of Robert H. Bork to be Associate Justice of the Supreme Court
of the United States, September 21, 1987 1228
Excerpts from William T. Coleman's Memorandum on Robert Bork for
the 1982 Report 1258
Letter from Harold R. Tyler, Jr. to Senator Metzenbaum, September 4,
1987 1255
Letter from Robert B. Fiske, Jr. to then-Chairman Thurmond regarding
the nomination of Antonin Scalia to be Associate Justice of the Su-
preme Court of the United States, August 5, 1987 1218
Letter from Robert B. Fiske, Jr. to then-Chairman Thurmond regarding
the nomination of William H. Rehnquist to be Associate Justice of the
Supreme Court of the United States, July 29, 1987 1223
Minutes of meeting with Judge Bork (1987 nomination) 1250
"Standing Committee on the Federal Judiciary, How it Works" 1235
American Civil Liberties Union:
"The Essential Judge Bork. A Report on the Testimony of Judge Robert
H. Bork Before the Senate Judiciary Committee and an Analysis of His
Constitutional Doctrine", October 2, 1987 4053
Letter from Joan E. Bertin to Chairman Biden, September 29, 1987 782
Letter from Joan E. Bertin to Senator Simpson, September 23, 1987 785
Letter from Morton Halperin and Jerry Berman to the Editor, City
Paper, September 28, 1987 3155
"Memorandum and Analysis: OCAW v. American Cyanamid Co. " 783
Memorandum from Morton Halperin and Jerry Berman to Senator Simp-
son, September 28, 1987 3154
Press release, September 29, 1987 781
(XXVIII)
XXIX
"Report on the Civil Liberties Record of Judge Robert H. Bork," Septem- Pa e e

ber 9, 1987 1936, 4003
American Jewish Congress:
Statement of Marvin Frankel, September 30,1987 4103
American Medical Student Association:
Statement of Drs. P. Preston Reynolds and Grace Heitsch, September 30,
1987 4130
Americans for Democratic Action:
Statement of Joseph Rauh, October 1987 4134
Americans for Religious Liberty:
Statement of Ed Doerr, September 30, 1987 4147
Anthony, Robert A.:
Essay, "Judge Bork's Decisions in Which He Wrote No Opinion: Analysis
of the Regulatory and Benefit Cases" 1548
Antitrust Law and Economics Review:
Editorial, "Foreword: Antitrust, the Supreme Court, and the Bork
Factor" 4152
Letter from Charles E. Mueller to Senator Kennedy, August 13, 1987 4151
Antitrust professors in opposition to the nomination:
Letter to Chairman Biden, September 29,1987 4166
Areeda, Phillip:
Testimony 3313
Asian American Bar Association of the Greater Bay Area:
Letter from Hon Chew to Chairman Biden, September 15, 1987 4170
Association of the Bar of the City of New York:
Testimony of Robert Kaufman and Sheila Birnbaum 2259
Letter from John W. Barnum to Senator Simpson, September 22, 1987 2269
Letter from John W. Barnum to Robert Kaufman, September 22,1987 2270
Letter from Kenneth Volk to Senator Hatch, September 24,1987 6106
Letter from Kenneth Volk to Senator Simpson, September 24, 1987 2275
Letter from Robert Kaufman to Chairman Biden, September 28,1987 2308
Letter from Winthrop J. Allegaert to Chairman Biden, September 22,
1987 3973
"New York Bar Association Split Over Stand on Bork," The New York
Times, undated 2295
Paul J. Curran, "Bork's Credentials Beyond Challenge; Opponents Use
Political Standards," New York Law Journal, September 28, 1987 2296
York Repudiating the Unauthorized Action of its Executive Committee
in Opposing the Nomination of Judge Robert H. Bork to the Supreme
Court of the United States," September 22, 1987 2271
Attorneys in opposition to the nomination:
Attorneys in Washington, D.C. in opposition to the nomination:
Attorneys who worked with Robert Bork in the Office of the Solicitor
General:
Avins, Alfred:
Statement 4182
Babcock, Barbara:
Testimony 2344
Baker, Donald:
Testimony 3314
"The Lawyer's Bookshelf: Review of The Antitrust Paradox," New York
Law Journal, July 7, 1978 3288
Baldwin, Donald:
Testimony 2016
Barnum, John W.:
Letter to Robert Kaufman, September 22, 1987 2270
Letter to Senator Simpson, September 22, 1987 2269
Bator, Paul:
Testimony 2910
XXX
Pa e
Becker, Mary: e
Bell, Griffin:
Testimony 2805
Bellizi, John J.:
Testimony 2052
Belter, Leonard W.:
Letter to the Editor, The Washington Post, September 22, 1987 2233
Bennett, Robert:
Testimony 2595
Ben-Veniste, Richard and Frampton, George Jr.:
Stonewall: The Real Story of the Watergate Prosecution (Simon and
Schuster 1977), p. 142 639
Berkeley Commission on Peace and Justice:
Memorandum, with attachments, September 30,1987 4185
Berman, Jerry:
Letter with Morton Halperin to City Paper, September 28,1987 3155
Memorandum with Morton Halperin to Senator Simpson, September 28,
1987 3154
Bertin, Joan E.:
Letter to Chairman Biden, September 29,1987 , 782
Letter to Senator Simpson, September 23,1987 785
BeVier, Lillian Riemer:
Testimony 2927
Biden, Chairman Joseph R.:
Closing Statements 860, 3894
Questioning of:
Judge Bork 112, 127, 232, 241, 258, 264, 319, 405, 452, 593, 642, 664, 676,
679, 696
William Coleman 962, 992, 1001
Barbara Jordan 1053
Andrew Young 1078
Burke Marshall 1099
William French Smith 1136
William Rogers 1174
Harold R. Tyler, Jr 1185, 1227, 1247
Laurence H. Tribe 1297
Panel of Carla Hills, Michael McConnell, Thomas Campbell, Richard
Stewart and Gary Born 1371
Panel of Lee Bollinger, William Styron and Robert Rauschenberg 2006
Honorable Warren E. Burger 2098
Panel of John Hope Franklin, William Leuchtenburg and Walter
Dellinger 2138
Lloyd N. Cutler 2176, 2181, 2188, 2199
Panel of Chesterfield Smith, Robert W. Meserve and Robert Kauf-
man 2265
Thomas Sowell 2320
Panel of Shirley M. Hufstedler, Barbara Babcock, Sylvia Law and
Wendy Williams 2332, 2392
Panel of Forrest McDonald, Daniel Meador, George Priest, John G.
Simon and Ronald Rotunda 2488
Panel of Charles S. Rhyne, John C. Shepherd, Wallace D. Riley and
James T. Bland, Jr 2756
Panel of Thomas Eagleton and Cass Sunstein 2788, 2791
Griffin Bell 2808, 2815
Philip Kurland 2849
Panel of Herma Hill Kay, Kathleen Sullivan, David Richards 3025
Elliot Richardson 3148, 3158, 3160
Panel of Mervyn Dymally, John Conyers, Jr. and Walter E.
Fauntroy 3187
XXXI
Panel of Terrance Sandalow, Steven Frankino, Maurice Holland, Pa e

Ronald Davenport, Eugene Rostow, Thomas Morgan and Gerhard ^
Casper 3270, 3308
Panel of Phillip Areeda, Thomas Kauper, Donald I. Baker and James
T. Halverson 3345
Panel of Robert Abrams, Charles Brown and Robert Pitofsky 3442,
3509, 3515, 3521
Beverly LaHaye 3552
Vilma Martinez 3621
Rabbi William Handler 3629, 3634
Birnbaum, Sheila:
Testimony 2259
Bittick, L. Cary:
Testimony 2078
Black, Charles L., Jr.:
"A Note on Senatorial Consideration of Supreme Court Nominees," 79
Yale Law Journal 657 (1970) 1007
Letter to The New York Times, July 25,1973 200
Letter to Congressman Bob Eckhardt, July 30, 1973 205
"Mr. Nixon, the Tapes, and Common Sense," The New York Times,
undated 203, 205
Bland, James T., Jr.:
Testimony 2754
Blecher, Maxwell M.:
Statement 3465
B'nai B'rith Women:
Boley, John:
Testimony 3688
Bollinger, Lee:
Testimony 1987
Bolton, John:
Bork, Judge Robert H.:
Testimony 103, 193, 319, 445, 795
Closing Statement 855
The Antitrust Paradox (1978), p. 407 3520
"The Crisis in Constitutional Theory: Back to the Future," The Philadel-
phia Society, April 3, 1987 653, 797
Letter to Alexander Haig, July 31, 1973 199
Letter to Alexander Haig, August 3, 1973 212
Letter to Chairman Biden regarding equal protection and right to priva-
cy, October 1, 1987 3896
Letter to Chairman Biden regarding Vander Jagt v. O'Neill, with attach-
ments, October 1, 1987 756, 3911
Letter to Chairman Biden in response to Senator Weicker's inquiry re-
garding the religion clauses, October 1, 1987 3933
Letter to Chairman Biden in response to Senator Leahy's inquiry regard-
ing timely filings, with attachments, October 2, 1987 3937
Letter to Chairman Biden in response to Senator Byrd's inquiry regard-
ing campaign finance, October 5, 1987 3948
Letter to Chairman Biden in response to Senator Simon's inquiry regard-
ing the televising of Supreme Court proceedings, October 5,1987 3954
Letter to Chairman Biden regarding unfair advertising, October 5, 1987.... 3957
Letter to Chairman Biden in response to Senator Metzenbaum's inquiry
regarding the Second Amendment, October 5, 1987 3958
Letter to Harold Tyler, September 28, 1987 4210
Letter to Judge Gordon, September 24, 1982 146, 763, 3918
Letter to Leonard Garment, August 3, 1973 215
Letter to Senator Kennedy in response to the Senator's November 16,
1973 letter, undated 223
List of "Supreme Court Briefs Where Solicitor General Bork Supported
the Rights of Minorities" 354
XXXII
List of "Supreme Court Briefs Where Solicitor General Bork Supported Page
the Rights of Women" 357
Mayflower Hotel Speech, May 1974 163, 1054
Memorandum to the Attorney General Regarding Pocket Vetoes, Janu-
ary 26, 1976 177
Memorandum to Judge Robb, October 1, 1982 139, 764, 3919
Memorandum to Judges Robb and Gordon, September 17, 1982 145, 762,
3917
Memorandum to Judges Robb and Gordon, October 8, 1982 141, 766, 3921
"The Struggle Over the Role of the Court," National Review, September
17, 1982 650
Transcript of Department of Justice "Press Conference of Honorable
Robert H. Bork, Acting Attorney General of the United States," with
attachments, October 24, 1973 595
"Bork on BorkThe World According to Robert Bork," September 17, 1987 370
Born, Gary:
Testimony 1364
Essay, "Robert Bork's Civil Rights Record" 1485
Brigham Young University, J. Reuben Clark Law School:
Letter from faculty members, September 28, 1987 4211
Broderick, Albert:
"Blind Spot for Blacksand Women" 4212
Brown, Charles:
Testimony 3430
Brown, Harold:
"Controversy Over Bork's Nomination No Surprise," Massachusetts Law-
yers Weekly, September 7, 1987 4224
Brownell, Herbert:
Testimony 3838
Telegram to Chairman Biden, September 20, 1987 1260, 3839
Buchanan, Patrick:
Memorandum to Alexander Haig, August 3, 1973 202
Burden, Ordway P.:
Statement 2085
Burger, Honorable Warren E.:
Testimony 2096
Business and Professional Women's Clubs/USA:
Letter from Linda Colvard Dorian to Chairman Biden, October 2, 1987 4227
Statement 4229
Byrd, Senator Robert C:
Questioning of Judge Bork 126, 679
Byse, Clark:
Campbell, Thomas:
Testimony 1367
Essay, "Analysis of Judge Bork's Labor Opinions" 1450
Carlock, George Reed:
Testimony 2986
Carrington, Frank:
Testimony 2068
Carter, Honorable Jimmy:
Casper, Gerhard:
Testimony 3240
Letter with Robert Mundheim to Chairman Biden, August 25, 1987 3241
Chicago Council of Lawyers:
Report, September 11, 1987 4252
Children's Defense Fund:
Statement of Marian Wright Edelman, September 28, 1987 4264
Childs, Marjorie:
Statement 4281
XXXIII
Pa e
Christian, James M.: e
Christofferson, Clyde:
Letter to the Editor, The Wall Street Journal, September 26, 1987 4287
Cikins, Warren I.:
Letter to The Washington Post, July 28, 1987 310, 3017
Citizens' Advisory Committee, The District of Columbia Bar:
Letter from Chauncey Fortt to Chairman Biden, October 2, 1987 4292
Citizens Against Bork:
Tape transcription 4294
Citizens for Decency Through Law, Inc.:
Statement 4302
Citizens for God and Country:
Clay, John:
Testimony 3688
Clinton, Governor Bill:
Statement 4320
Coleman, William T.:
Testimony 867
Excerpts from Memorandum on Robert Bork for the 1982 ABA Report 1258
Collins, Cardiss:
Statement 4328
Committee for a Fair Confirmation Process:
"A Response to the Majority Report in the Senate Confirmation Proceed-
ings of Judge Robert H. Bork," November 2, 1987 4332
Common Cause:
"Why the United States Senate Should Not Consent to the Nomination of
Judge Robert H. Bork to be a Justice of the Supreme Court," Septem-
ber 1987 4457
Community Free Democrats:
Congressional Record:
Excerpt on "Obtaining the White House Tapes," August 1, 1973 205, 212
Conover, Bev and Elton M., Jr.:
Letter to committee members, September 29, 1987 4473
Conyers, Congressman John:
Testimony 3166
Curran, Paul J.:
"Bork's Credentials Beyond Challenge; Opponents Use Political Stand-
ards," New York Law Journal, September 28, 1987 2296
Crown, Joseph:
Letter to the Editor, The Mexico City News, August 28, 1987 4479
"The Supreme Court Crisis: The Bork Nomination," August 30, 1987 4480
Cutler, Lloyd N.:
Testimony 2158
"Judge Bork: Well Within the Mainstream," The Washington Post, Sep-
tember 16, 1987 247, 2175
"Opinion: The Battle Over Bork," The American Lawyer, September 1987. 2173
"Saving Bork from Both Friends and Enemies," The New York Times,
July 16, 1987 2171
Danforth, Senator John:
Testimony 17
Daskal, Dimitri G.:
Testimony 3809
Davenport, Ronald:
Testimony 3250
Davidow, Robert P.:
Statement 4483
Dean, Rev. Kenneth:
Testimony 2995
86-974 0-89-2
XXXIV
"Bork Thrives on Confrontation," Rochester Times-Union, August 14, Paê

1987 4500
DeConcini, Senator Dennis:
Questioning of:
Honorable Gerald Ford 11
Judge Bork 248, 391, 676, 722
Panel of Carla A. Hills, Michael McConnell, Thomas Campbell, Rich-
ard Stewart and Gary Born 1398
Panel of James Thompson, John P. Frank and Fred L. Foreman 2228
Thomas Sowell 2312
Panel of Shirley Hufstedler, Barbara Babcock, Sylvia Law and
Wendy Williams 2404
Panel of Thomas Eagleton and Cass Sunstein 2800
Griffin Bell 2816
Panel of Paul Bator, Henry Monaghan, Lillian Riemer BeVier, A.
Leo Levin and Dallin H. Oaks 2962, 2975
Panel of Herma Hill Kay, Kathleen Sullivan and David Richards 3099
Panel of Robert Abrams, Charles Brown and Robert Pitofsky 3524
Beverly LaHaye 3541
Dellinger, Walter:
Testimony 2136
Denominational Ministry Strategy:
Letter from Rev. D. Douglas Roth and Rev. Daniel N. Solberg to Diana
Huffman, September 15, 1987 4491
Letter from Rev. D. Douglas Roth, Rev. Daniel N. Solberg and Charles L.
Honeywell to Diana Huffman, October 7, 1987 4493
District of Columbia Democratic State Committee:
Letter from James M. Christian to Chairman Biden, September 18, 1987... 4495
Resolution, September 18, 1987 4496
Dolan, Edith-Marie:
Dole, Senator Bob:
Testimony 12
Drach, Mitchell R.:
Dunn, James, et al.:
Letter to Senator Simon 4499
Dymally, Congressman Mervyn:
Testimony 3162
Eagleton, Senator Thomas:
Testimony 2760
Equal Rights Advocates, with Federation of Women Lawyers Judicial Screen-
ing Panel, Women's Legal Defense Fund, NOW Legal Defense and Educa-
tion Fund:
Executive Leadership Council:
Falsgraf, William W.:
Fauntroy, Delegate Walter E.:
Testimony 3175
Federal regulations (OSHA) relating to occupational exposure to lead, Novem-
ber 14 and 21, 1978 4510
Federal regulations relating to the Watergate Special Prosecution Force:
Creation of WSPF, May 31, 1973 3125
Abolition of WSPF, October 23, 1973 3210
Federation of Women Lawyers Judicial Screening Panel, with Women's Legal
Defense Fund, NOW Legal Defense and Education Fund, Equal Rights
Advocates:
XXXV
Pa e
Feeney, Floyd and Mahoney, Barry: s
Feinberg, Margo:
Letter to Chairman Biden regarding views of local California bar associa-
tions, September 22, 1987 4592
Fellers, James D.:
Letter to John C. Shepherd, September 18, 1987 2741
Finley, Lucinda:
Telegram to Chairman Biden, September 24, 1987 2977
Fish, Congressman Hamilton:
Testimony 21
Fiske, Robert:
Testimony 1184
Letter to then-Chairman Thurmond regarding the nomination of Antonin
Scalia to be Associate Justice of the Supreme Court of the United
States, August 5, 1987 1218
Letter to then-Chairman Thurmond regarding the nomination of William
H. Rehnquist to be Associate Justice of the Supreme Court of the
United States, July 29, 1987 1223
Fiss, Owen:
Testimony 2491
Flynn, John J.:
Statement 4595
Foer, Albert A.:
Testimony 3824
Ford, Honorable Oerald:
Prepared Statement , 6
Testimony 3
Foreman, Fred:
Testimony 2221
Foster, Byron C:
Frampton, George:
Testimony , 3194
Stonewall: The Real Story of the Watergate Prosecution, with Richard
Ben-Veniste (Simon and Schuster 1977), p. 142 639
Frank, John:
Testimony 2204
Frankino, Steven:
Testimony 3252
Franklin, John Hope:
Testimony '. 2118
Freedman, Monroe H.:
Fuesel, Robert:
Testimony 2047
Full committee employees staffing the hearing, list of 3894
Gewirtz, Paul:
Testimony 2555
"Senators Should Use Activist Approach in Judging Nominees," Legal
Times, August 10, 1987 2591
Gilligan, Carol:
Telegram to Chairman Biden, September 27, 1987 2978
Glendon, Mary Ann:
Essay, "The Probable Significance of the Bork Appointment for Issues of
Particular Concern to Women" 1440
XXXVI
Pa e
Gold, Laurence: s
Letter to Senator Metzenbaum, September 28, 1987 3090
Goldstein, Joseph:
"That Was the Real Bork Who Testified," The New York Times, Septem-
ber 27, 1987 4627
Gordon, Judge James F.:
Affidavit, October 2,1987 4628
Letter to Chairman Biden, August 24,1987 136, 808
Letter to Judge Bork, December 17,1982 143, 768, 3923
Grano, Joseph D.:
Essay, The 'Response Prepared to White House Analysis of Judge Bork's
Record': A Critical Appraisal" 1596
Grassley, Senator Charles E.:
Questioning of:
Judge Bork 259, 264, 400, 406, 689
William Coleman 984
Burke Marshall 1103
Nicholas deB. Katzenbach 1154
Harold R. Tyler, Jr 1210
Lloyd N. Cutler 2191
man 2302
Wendy Williams 2402
Panel of Herma Hill Kay, Kathleen Sullivan, and David Richards 3097
Elliot Richardson 3151
Panel of Robert Abrams, Charles Brown and Robert Pitofsky 3523, 3529
Vilma Martinez 3622
Rabbi William Handler 3638
Herbert Brownell 3842
Grey, Thomas:
Testimony 2514
Haberman, Joshua O.:
Letter to the Editor, The Washington Post, August 6, 1987 311, 3018
Haig, Alexander M.:
Memorandum to President Nixon, August 2, 1973 198
Memorandum to President Nixon, August 8, 1973 204
Halperin, Morton:
Letter with Jerry Berman to City Paper, September 28, 1987 3155
Memorandum with Jerry Berman to Senator Simpson, September 28,
1987 3154
Halverson, James T.:
Testimony 3328
Letter with other previous chairmen of the Section of Antitrust Law of
the American Bar Association to The Washington Post, August 7, 1987
388,2276
Hampton, Ronald:
Testimony 3860
Handler, Rabbi William:
Testimony 3626
Materials submitted 3642
Harris Survey, "Public Opposes Bork Nomination by 59-27%," September 28,
1987 3547
Harrison, John:
Declaration regarding Vander Jagt v. O'Neill, September 28, 1987 772, 3927
Hatch, Senator Orrin G.:
XXXVII
Pa e
Questioning of: e
Judge Bork 176, 345, 471, 594, 643, 845
William Coleman 955,964
Burke Marshall 1102
Edward Levi 1120
Nicholas Katzenbach 1150
William Rogers 1171
Dellinger 2141
man 2292
Thomas Sowell 2317
Wendy Williams 2395
Panel of Robert Bennett, Paul Gewirtz, Owen Fiss, Thomas Grey and
Judith Resnick 2615
Griffin Bell 2813
Philip Kurland 2855
Leo Levin and Dallin H. Oaks 2952, 2958, 2963
Panel of Henry Ruth and George Frampton 3207, 3213
Beverly LaHaye 3544, 3552
List of "Substantive Pro-Minority and Pro-Women Appellate Court Deci-
sions by Judge Bork", with copies of decisions 472
the Rights of Women 583
List of '^Supreme Court Briefs Where Solicitor General Bork Supported
the Rights of Minorities 584
List of "Unanimous Pro-Labor Cases" 846
Memorandum, "67 Flaws of the Bork Ad," submitted by Senator Hatch 3135
"Response to the Statement of John P. Frank" 3554
Statement regarding Katzenbach v. Morgan 1375
Hazard, Geoffrey C, Jr.:
Hearings Before the Committee on the Judiciary, "Nomination of Elliot Rich-
ardson to be Attorney General," 93rd Cong., 1st Sess., May 9, 10, 14, 15, 21
and 22, 1973, p. 185 3128
Hearings Before the Committee on the Judiciary, "The Selection and Confir-
mation of Federal Judges," 97th Cong., 2nd Sess., January 27, February 12,
26 and March 11, 24, 31, 1982, pp. 2091-2092 3531
Heflin, Senator Howell:
Questioning of:
Judge Bork 288, 445, 795
William Coleman 983
Thomas Sowell 2325
Wendy Williams 2387
Panel of Forrest McDonald, Daniel Meador, George Priest, John
XXXVIII
Page
Griffin Bell 2824
Leo Levin and Dallin H. Oaks 2954
Vilma Martinez 3618
Panel of John Clay, John C. Roberts and John Boley 3790
Hills, Carla:
Testimony 1347
"Take the Trouble To Understand" 1415
Hispanic National Bar Association:
Statement of John Martinez 4639
Holland, Maurice:
Testimony 3257
Human Life Bill, Report of the Subcommittee on Separation of Powers, S.158,
97th Cong., 1st Sess. (1981) 1376
Hufstedler, Shirley M .:
Testimony 2331
Hughes, John L.:
Testimony 2061
Humphrey, Senator Gordon J.:
Questioning of:
Judge Bork 296, 426, 427, 453, 736
William Coleman 993
Barbara Jordan 1051, 1064
Andrew Young 1083
Burke Marshall 1109
William Rogers 1180
Dellinger 2156
Panel of James Thompson, John Frank and Fred Foreman 2236
Panel of Chesterfield Smith, Robert Meserve and Robert Kaufman 2288
Thomas Sowell 2327
Wendy Williams 2409
Judith Resnick 2719
Griffin Bell 2826
Philip Kurland 2857
Panel of Richard Thornburgh, A. Randolph Raymond, Stuart A.
Smith and Jewel S. LaFontant 2901
Rev. Kenneth Dean 3015
Elliot Richardson 3157,3158
Panel of Henry Ruth and George Frampton 3237
XXXIX
Panel of Terrance Sandalow, Steven Frankino, Maurice Holland,

Ronald Davenport, Eugene Rostow, Thomas Morgan and Gerhard Pa e e
Casper 3306
Beverly LaHaye 3542
"Response to Submission by John P. Frank" 3876
"Statistics Concerning Judge Bork's Record on Appeal in Cases Where He
Wrote or Joined the Majority Opinion" 737
"Statistics Concerning Subsequent History with Respect to Judge Bork's
Dissenting Opinions" 740
Innis, Roy:
Testimony 3792
Janofsky, Leonard S.:
Johnson, Harold:
Testimony 3863
Jordan, Barbara:
Testimony 1004
Kalven, Jamie:
"Bork v. The First," The Nation, September 19, 1987 3507
Kamenar, Paul D. and Popeo, David J.:
Katzenbach, Nicholas deB.:
Testimony 1146
Kaufman, Robert:
Testimony 2259
Kauper, Thomas:
Testimony 3338
Kay, Herma Hill:
Testimony 3025
Kennedy, Senator Edward M.:
Questioning of:
Judge Bork 149, 235, 336, 646, 666, 842
William Coleman 999
Barbara Jordan 1046
Andrew Young 1078
Dellinger 2140
Wendy Williams 2399
Griffin Bell 2811
Philip Kurland 2850
Panel of Mervyn Dymally, John Conyers Jr. and Walter E. Fauntroy. 3188
Vilma Martinez 3615
"Bork on BorkThe World According to Robert Bork," September 17,
1987 370
Letter to Robert Bork, November 16, 1973 218
XL
Kliesmet, Robert B.: Page
Testimony 3850
Krane, Howard:
Testimony 2980
Kurland, Philip:
Testimony 2831
Lacovara, Philip:
LaFontant, Jewel S.:
Testimony 2884
Resume 2902
LaHaye, Beverly:
Testimony 3537
Larkin, Paul:
Declaration regarding Vander Jagt v. O'Neill, September 25, 1987 769, 3924
Law, Sylvia:
Testimony 2354
Law deans, letter from 32 opposing Judge Bork's confirmation as Associate
Justice of the Supreme Court to Chairman Biden and Senator Thurmond,
September 22, 1987 1342
Law professors, letter from 100 opposing Judge Bork's confirmation as Associ-
ate Justice of the Supreme Court to Chairman Biden and Senator Thur-
mond, September 22, 1987 1335
Law professors, list of 100 favoring the confirmation of Robert H. Bork as an
Associate Justice of the Supreme Court 408
Law professors who signed letters in opposition to Robert Bork's nomination
to the Supreme Court, list of 3355
Law schools at which law professors signed letters in opposition to Robert
Bork's nomination to the Supreme Court, list of 3351
Lawson, Gary:
Essay, "Judge Bork, Separation of Powers and Special Prosecutor Bills".... 1566
Lawyers' Committee for Civil Rights Under Law:
September 14, 1987 4692
September 30, 1987 4661
"Memorandum on the Nomination of Judge Robert H. Bork as an Associ-
ate Justice to the United States Supreme Court" 4693
"On the Nomination of Judge Robert H. Bork as an Associate Justice of
the United States Supreme Court" 4680
Statement of Conrad K. Harper, for Individual Members of of the Law-
yers' Committee for Civil Rights Under Law, and Individual Members
of Local Lawyers' Committees, September 29, 1987 4663
Lawyers for the Judiciary 3692
Statement 3692
Leahy, Senator Patrick J.:
Questioning of:
Judge Bork 267, 416, 427, 746
Andrew Young 1084
Panel of John Hope Franklin, William Leuchtenberg and Walter
Dellinger 2145
XLI
Page
Thomas Sowell 2316
Wendy Williams 2407
Griffin Bell 2820
Leadership Conference on Civil Rights:
"The Bork Record on Labor" 4752
"Bork v. Bork," with supplement 4745
Statement of Benjamin Hooks, October 1987 4739
"Summary of Some of the Major Arguments of the Nomination of Robert
Bork" 4757
Lebron, Michael:
Letter to Diana Huffman, September 19, 1987 4761
Lee, Joseph D.:
Affidavit regarding Vander Jagt v. O'Neill, with attachments, October 2,
1987 4762
Leibe, Diane C:
Letter to committee members, undated 2305
Letter to Senator Grassley, September 18, 1987 2304
Leuchtenburg, William:
Testimony 2128
Levi, Edward:
Testimony 1111
Levin, A. Leo:
Testimony 2935
Licht, Richard A.:
"Brief in Opposition to the Nomination of Judge Bork to the Supreme
Court" 4776
Statement , 4771
Lipshutz, Robert J.:
List of majority and minority staff members who assisted with the hearings.... 3894
Luff, Ruth:
Affidavit regarding Vander Jagt v. O'Neill, September 25, 1987 775, 3930
Marcus, Paul:
Letter to Senator DeConcini, September 17, 1987 725
"UA's Dean Marcus Calls for Bork's Confirmation," Arizona Daily Star,
August 29, 1987 726
Marshall, Burke:
Testimony 1087
Marshall, Thurgood:
Passage from the hearing on the nomination of Justice Marshall, 1967 744
Martinez, Vilma:
Testimony 3576
Maryland Association of Equal Opportunity Personnel:
Statement of Yvonne A. Edwards 4792
Mahoney, Barry and Feeney, Floyd:
XLII
Pa e
McAninch, William S.: s?
McConnell, Michael:
Testimony 1354
Essay, "The First Amendment Jurisprudence of Judge Robert Bqjrk" 1419
McDonald, Forrest:
Testimony 2412
McLaughlin, Francis X.:
Statement, with attachments 4797
Meador, Daniel:
Testimony 2420
Meltzer, Bernard D.:
Essay, "The ACLU's Evaluation of Judge Bork's Employment Decisions" .. 1579
Mental Health Law Project:
"Judge Bork and the Rights of Disabled People" 4807
Letter from Leonard S. Rubenstein to Diana Huffman, October 2,1987 4818
Letter from Norman S. Rosenberg to Chairman Biden, September 15,
1987 4806
Statement of Leonard S. Rubenstein, October 5,1987 4822
Meserve, Robert:
Testimony 2244
Metzenbaum, Senator Howard M.:
Questioning of:
Judge Bork 193, 235, 360, 467, 678
Barbara Jordan 1049
Andrew Young 1082
Burke Marshall 1101
William Rogers 1172,1175
Harold R. Tyler, J r 1201
Panel of Henna Hill Kay, Kathleen Sullivan and David Richards 3088
Roylnnis 3804, 3806
Panel of Harold Johnson, Robert Kliesmet and Ronald Hampton 3871
Letter to Harold Tyler, August 26, 1987 1256
Mexican American Legal Defense and Educational Fund:
Statement of Antonia Hernandez, with attachments, October 5,1987 4838
Minnesota Coalition of 372,000 to Stop Bork:
Letter from Rev. Lee S. Wiskochil to Chairman Biden, with attachments,
September 22, 1987 4852
Minnick, John B.:
Letter to Senator Hatch, with attachments, August 19, 1987 4887
Minority Business Enterprise Legal Defense and Education Fund, Inc.:
Statement 4896
Monaghan, Henry:
Testimony 2926
Morgan, Thomas D.:
Testimony 3269
XLIII
Pa e
Morris, Earl F.: ^
Morrison, Alan B.:
Statement "Concerning Nader v. Bork and the Nomination of Judge
Robert H. Bork to be Associate Justice of the Supreme Court of the
United States," October 5, 1987 5941
Mundheim, Robert H.:
Letter with Gerhard Casper to Chairman Biden, August 25, 1987 3241
NAACP Legal Defense and Educational Fund, Inc.:
'Bork v. Bork. A Comparison of Judge Bork's Confirmation Testimony
with His Previous Speches and Articles," with People for the American
Way Action Fund, September 1987 4908
dents," with People for the American Way Action Fund, September
1987 5742
"Most Recent Date of Bork Criticism of Supreme Court Constitutional
Precedents," with attachments, October 5, 1987 4974
Statement of James M. Nabrit, III, October 8, 1987 5055
Statement of Julius L. Chambers, October 5, 1987 5042
Nader, Ralph:
Letter to Chairman Biden, with attachments, October 12, 1987 5059
Nation Institute:
"The Bork Report. The Supreme Court Watch Project's Analysis of the
Record of Judge Robert H. Bork" 5084
Letter from Emily Sack to Chairman Biden, October 1, 1987 5083
National Abortion Rights Action League:
"Bork as 'Confirmation-day Moderate,' " September 16, 1987 5307
"The Opposition to Bork: The Case for Women's Liberty" 5266
National Association for the Advancement of Colored People:
Howard University School of Law, letter from faculty members to Chair-
man Biden and Senator Thurmond, September 17, 1987 5511
J. Clay Smith, Jr., "A Response to Professor Robert Bork's 'Giving Mean-
ing to the Constitution: Competing Visions of Judicial Review, " June
12, 1987 5482
J. Clay Smith, Jr., "Toward Pure Legal Existence: Blacks and the Consti-
tution," June 18, 1987 5490
Nathaniel R. Jones, "The Desegregation of Urban Schools Thirty Years
After Brown," Summer 1984 5338
Olive Taylor, "Two Hundred Years, An Issue: Ideology in the Nomination
and Confirmation Process of Justices to the Supreme Court of the
United States," September 1987 5382
Statement of Althea T.L. Simmons, September 1987 5309
National Association of Criminal Defense Lawyers:
Statement of Joseph Tydings 5514
National Association of Evangelicals:
Statement of Robert P. Dugan, Jr., October 2, 1987 5526
National Association of Federal Investigators:
Letter from Alan Nelson to Chairman Biden 2089
Resolution 2090
National Bar Association:
Letter from Walter L. Sutton, Jr. to Chairman Biden, September 29, 1987. 5532
National Black Caucus of State Legislators:
Statement of David P. Richardson, Jr., September 1987 5533
National Coalition for Women and Girls in Education:
Letter from Jill Miller to Chairman Biden, September 25, 1987 5538
National Conference of Black Lawyers and Medgar Evers College for Law and
Social Justice:
Statement 5541
National Council of the Churches of Christ:
Letter from Bishop Philip R. Cousin and Dr. Arie R. Brouwer to Chair-
man Biden, October 1, 1987 5549
Letter from James A. Hamilton to Chairman Biden, October 1, 1987 5550
"Resolution Opposing the Nomination of Judge Robert H. Bork to the
Supreme Court of the United States" 5551
National Conference of Women's Bar Associations:
National Council of Jewish Women:
Statement 5575
XLIV
Pa e
National Education Association: e
Letter from Kenneth F. Melley to Chairman Biden, October 1, 1987 5577
National Family Planning and Reproductive Health Association, Inc.:
Statement of Scott R. Swirling, October 5,1987 5585
National Lawyers Guild:
Statement of Haywood Burns, with attachment 5588
National Press, Inc.:
Statement of Joe D. Joseph, October 31,1987 5600
National Urban League, Inc.:
Statement of Douglas G. Glasgow, October 5,1987 5605
National Women's Law Center:
Statement of Marcia D. Greenberger, Suzanne E. Meeker and Ellen J.
Vargyas, with attachment, October 5,1987 5611
National Women's Political Caucus:
Statement of Irene Natividad, October 5,1987 5663
Natural Resources Defense Council:
Letter from Adrian W. DeWind to Chairman Biden, September 22,1987.... 5670
Memorandum, September 22,1987 5673
"New York Bar Association Split Over Stand on Bork," The New York Times,
undated 2295
New York State Defenders Association, Inc.:
Letter from Wilfred R. O'Connor to Chairman Biden, September 16,1987 . 5683
New York Times, The:
Black, Charles L., Jr., Letter to the Editor, July 25,1973 200
Black, Charles L., Jr., "Mr. Nixon, the Tapes and Common Sense," undat-
ed 203,205
Cutler, Lloyd N., "Saving Bork from Both Friends and Enemies," July 16,
1987 2171
Goldstein, Joseph, "That Was the Real Bork Who Testified," September
27,1987 4627
"New York Bar Association Split Over Stand on Bork," undated 2295
"Nixon and Bork Reported Split on Prosecutor's Role," October 29,1973... 636
"Nixon Plan on Prosecutor is Opposed by Mansfield," October 28, 1973 634
Rostow, Eugene, Letter to the Editor, August 3, 1987, (published and
unpublished) 3287
Smith, Stuart, "Bork Deserves to be a Justice," September 16, 1987 455
"Nixon and Bork Reported Split on Prosecutor's Role, The New York Times,
October 29, 1973 636
"Nixon Plan on Prosecutor is Opposed by Mansfield," The New York Times,
October 28, 1973 634
Nolan, Robert L.:
NOW Legal Defense and Education Fund, with Federation of Women Law-
yers Judicial Screening Panel, Women's Legal Defense Fund, Equal Rights
Advocates:
Oaks, Dallin:
Testimony 2941
Oil, Chemical and Atomic Workers International Union v. American Cyana-
mid Co.:
AFL-CIO, "Memorandum on Judge Bork's Opinion and Testimony Con-
cerning the American Cyanamid Case" 3091
American Civil Liberties Union, Press Release, September 29, 1987 781
American Civil Liberties Union, "Memorandum and Analysis: OCA W v.
American Cyanamid Co." 783
Bertin, Joan E., Letter to Chairman Biden, September 29, 1987 782
Bertin, Joan E., Letter to Senator Simpson, September 23, 1987 785
Federal regulations (OSHA) relating to occupational exposure to lead,
November 14 and 21, 1978 4510
Riggs, Betty, Letter to Senators, September 28, 1987 788
Simpson, Honorable Alan, Letter to Joan E. Bertin, September 30, 1987.... 779
Olmstead v. United States, 277 U.S. 438 (1928) 1015
Patriotic Majority:
"The Case of Bork Versus the American Revolution" 5685
Pearce, Jack:
Letter to Chairman Biden, August 17, 1987 5688
XLV
"Recommendation that Judge Robert Bork Not be Confirmed as an Asso- Pa e

ciate Justice of the United States Supreme Court on the Basis of s
Deficiencies in His Approach to Interpretation of the Antitrust Laws"... 5692
People for the American Way Action Fund:
"Bork v. Bork. A Comparison of Judge Bork's Confirmation Testimony
with His Previous Speeches and Articles," with the NAACP Legal
Defense and Educational Fund, Inc., September 1987 4908
dent," with the NAACP Legal Defense and Educational Fund, Inc.,
September 1987 5742
Statement of John R. Buchanan, October 1987 5701
Peterson, Henry E.:
Physicians Forum, Inc.:
Pilpel, Harriet F.:
Pitofsky, Robert:
Testimony 3441
Planned Parenthood Federation of America:
Statement of Faye Wattleton, October 5, 1987 5893
Polsby, Daniel D.:
Essay, "Judge Bork and Standing" 1470
Popeo, Daniel J. and Kamenar, Paul D.:
Priest, George:
Testimony 2435
Public Citizen Litigation Group:
"Judge Bork's Civil Rights Record on the Court of Appeals" 5931
The Judicial Record of Judge Robert Bork, August 1987 1725
Letter from Ralph Nader to Chairman Biden, with attachments, October
12, 1987 5059
"Statement of Alan B. Morrison Concerning Nader v. Bork, and the
Nomination of Judge Robert H. Bork to be Associate Justice of the
Supreme Court of the United States," October 5, 1987 5941
"Statistics Lie: Reponse to Statistics Frequently Cited by the White
House to Support Nomination of Judge Bork" 5939
Puerto Rican Legal Defense and Educational Fund, Inc.:
Randolph, A. Raymond:
Testimony 2868
Rauschenberg, Robert:
Testimony 1998
Report of the Committee 6180
Report of the Subcommittee on Separation of Powers on the Human Life bill,
S. 158, 97th Cong., 1st Sess. (1981) 1376
Resnick, Judith:
Testimony 2528
"Response Prepared to White House Analysis of Judge Bork's Record," Sep-
tember 3, 1987 1630
"A Retraction on Bork," The Washington Post, November 22, 1973 638
Rhyne, Charles:
Testimony 2724
Telegram to President Reagan, September 13, 1987 2742
Richards, David A.J.:
Testimony 3047
Richardson, Elliott:
Testimony 3112
XLVI
Hearings Before the Committee on the Judiciary, Nomination to be At-
torney General, 93rd Cong., 1st Sess., May 9, 10, 14, 15, 21, 22, 1973, p. Page
185 3128
Riggs, Betty:
Letter to Senators, September 28, 1987 788
Riley, Wallace:
Testimony 2748
Robb, Judge Roger:
Memorandum to Judges Bork and Gordon, March 19, 1982 144, 761, 3916
Memorandum to Judges Bork and Gordon, October 5, 1982 140, 765, 3920
Roberts, John C:
Testimony 3688
"Judge Bork's Legal Philosophy" 6008
Rogers, William:
Testimony 1160
Rostow, Eugene:
Testimony 3279
Letter to the Editor, The New York Times, August 3, 1987 (published and
unpublished) 3287
Rotunda, Ronald:
Testimony 2454
Ruth, Henry:
Testimony 3192
San Francisco Lawyers' Committee for Urban Affairs:
Letter from Mark N. Aaronson to Chairman Biden, October 1, 1987 6016
"Resolution of the Executive Committee in Opposition to the Nomination
of Robert H. Bork to the Supreme Court of the United States" 6017
Sandalow, Terrance:
Testimony 3289
Schauer, Frederick:
Schulhofer, Steven J.:
Schwartz, Louis B.:
"Bork: Why Conservatives Should Oppose Him" 6023
Letter to Senator Leahy, September 10, 1987 6022
"Moderate Bork? Defender of the First Amendment?" 6027
Schwartz, Herman:
"The Frantic Reflagging of Bork," The Nation, September 19, 1987 3504
Statement 3491
"Senate Democrats Ask Independent Special Prosecutor," The Washington
Post, October 31, 1973 632
Shepherd, John:
Testimony 2735
"In Support of Bork," National Law Journal, September 21, 1987 2744
Simon, John G.:
Testimony 2445
Simon, Senator Paul:
Questioning of:
Judge Bork 307,438
Simpson, Senator Alan K.:
Questioning of:
Judge Bork 236, 242, 380, 669, 677, 850
William Coleman 968
William Rogers 1176
XLVII
Page
Panel of Lee Bollinger, Robert Styron and Robert Rauschenberg 2007
Panel of Donald Baldwin, Dewey Stokes, Jerald R. Vaughn, John J.
Bellizzi, John L. Hughes, Frank Carrington and L. Cary Bittick 2092
Dellinger 2147
Panel of James Thompson, John Frank and Fred Foreman 2230, 2238
Wendy Williams 2389
Panel of Robert Bennett, Paul Gerwirtz, Owen Fiss, Thomas Grey
and Judith Resnick 2716
Griffin Bell 2818
Philip Kurland 2852
Panel of Herma Hill Kay, Kathleen Sullivan and David Richards.... 3084,
3087
Vilma Martinez 3616
Rabbi William Handler 3633, 3635
Panel of Harold Johnson, Robert Kliesmet and Ronald Hampton 3872
Letter to Joan E. Bertin, September 30, 1987 779
the Rights of Minorities" 975
the Rights of Women" 978
Questions submitted in connection with William Coleman's testimony 979
Sinclair, I.B.:
Memorandum, with attachments, October 6, 1987 6032
Smith, Chesterfield:
Testimony 2243
Smith, Stuart:
Testimony 2892
"Bork Deserves to be a Justice," The New York Times, September 16,
1987 455
Smith, William French:
Testimony 1124
Society of American Law Teachers:
Letter from Emma C. Jordan to Chairman Biden, September 22, 1987 2607
List of "Law Professors Who Subscribe to the Society of American Law
Teachers' Letter of Opposition to the Nomination of Judge Robert H.
Bork to the United States Supreme Court" 2608
Sowell, Thomas:
Testimony 2310
Specter, Senator Arlen:
Questioning of:
Judge Bork 277, 427, 713, 815
William Coleman 988, 992
Barbara Jordan 1046
Andrew Young 1080
Burke Marshall 1104
Edward Levi 1121
William Rogers 1178
XLVIII
Page
Dellinger 2152
Thomas Sowell 2323
Wendy Williams 2405
Griffin Bell 2822
Philip Kurland 2853
Panel of Richard Thornburgh, A. Raymond Randolph, Stuart Smith
and Jewel S. LaFontant ' 2899
Panel of Paul Bator, Henry Monaghan, Lillian Reimer BeVier, A.
Ronald Davenport, Eugene Rostow, Thomas Morgan and Gerhard
Casper 3309
Beverly LaHaye .". 3574
Vilma Martinez 3619
Roylnnis 3804
York Repudiating the Unauthorized Action of its Executive Committee in
Opposing the Nomination of Judge Robert H. Bork to the Supreme Court of
the United States," September 22, 1987 2271
"Statistics Concerning Judge Bork's Record on Appeal in Cases Where He
Wrote or Joined the Majority Opinion" 737
"Statistics Concerning Subsequent History with Respect to Judge Bork's Dis-
senting Opinions" 740
Stewart, Richard:
Testimony 1369
Essay, "The Judicial Performance of Robert Bork in Administrative and
Regulatory Law" 1520
Stokes, Dewey:
Testimony 2023
Strong, Jerome A.:
Statement 6049
Styron, William:
Testimony 1989
Suffolk University Law School:
"Report on the 'Judge Bork Survey' of Constitutional Law Professors,"
October 5, 1987 6058
Sullivan, Kathleen:
Testimony 3070
Sullivan, Lawrence A.:
Statement 3479
Sunstein, Cass:
Testimony 2765
"Supreme Court Briefs Where Solicitor General Bork Supported the Rights of
Minorities," list of 354, 584, 975
"Supreme Court Briefs Where Solicitor General Bork Supported the Rights of
Women," list of 357, 583, 978
XLIX
Pa e
Tachau, David Brandeis: %
Affidavit regarding VanderJagtw. O'Neill, October 1, 1987 6062
Tate, S. Shepherd:
Telephone Memorandum, The White House, August 3, 1973 216
Thompson, James:
Testimony 2202
Thornburgh, Richard:
Testimony 2863
Thurmond, Senator Strom:
Questioning of:
Judge Bork 128, 329, 464
Edward Levi 1120
William Rogers 1169
Harold R. Tyler, J r 1189, 1247
Panel of Donald Baldwin, Dewey Stokes, Jerald R. Vaughn, John J.
Bellizzi, John L. Hughes, Frank Carrington, L. Cary Bittick 2091
Honorable Warren E. Berger 2100
Thomas Sowell 2315
Judith Resnick 2613
Panel of Charles Ryne, John Shepherd, Wallace Riley and James T.
Bland, Jr 2755
Griffin Bell 2810
Panel of Howard Krane and George Read Carlock 2994
Ronald Davenport, Eugene Rostow, Thomas Morgan and Gerhard
Casper 3305
Panel of Phillip Areeda, Thomas Kauper, Donald Baker and James
Halverson 3347
Beverly LaHaye 3551
Roylnnis 3805
Panel of Harold Johnson, Robert Kleismet and Ronald Hampton 3869
Transcript of Department of Justice "Press Conference of Honorable Robert
H. Bork, Acting Attorney General of the United States," October 24, 1973.... 595
Transcript of Proceedings, Subcommittee on Antitrust, Monopolies and Busi-
ness Rights, S. 567, Malt Beverage Interbrand Competition Act, August 4,
1987, p. 57 3533
Tribe, Laurence H.:
Testimony 1267
Tyler, Harold R., Jr.:
Testimony 1184
Letter to Chairman Biden regarding the nomination of Robert H. Bork to Pa e
be Associate Justice of the Supreme Court of the United States, Sep- &
tember 21, 1987 1228
Letter to Senator Metzenbaum, September 4, 1987 1255
United Automobile, Aerospace & Agricultural Implement Workers of Amer-
ica, UAW, International Union:
Statement of Owen Bieber, September 1987 6078
United States Justice Foundation:
Statement of Gary G. Kreep 6085
University of Akron:
Letters from faculty members to Senator Metzenbaum 6086
University of California, Berkeley, School of Law:
September 15, 1987 6090
University of California, Davis, School of Law:
Letter from faculty members to Chairman Biden, September 16, 1987 6092
University of California, Santa Barbara:
Letter from members of the Chicano/Latino Faculty Caucus to Chairman
Univerity of Texas at Austin Law School:
September 1, 1987 6099
University of Wisconsin Law School:
Letter from faculty members to committee members, September 16, 1987.. 6104
Vander Jagt v. O'Neill:
Bork, Judge Robert H., Memorandum to Judges Robb and Gordon, Sep-
tember 17, 1987 145, 762, 3917
Bork, Judge Robert H., Memorandum to Judge Robb, October 1, 1982.... 139,
764
Bork, Judge Robert H., Letter to Judge Robb, October 1, 1982 146, 763, 3919
Bork, Judge Robert H., letter to Judge Gordon, September 24, 1982.... 146, 763,
3918
Bork, Judge Robert H., Memorandum to Judges Robb and Gordon, Octo-
ber 8, 1982 141, 766, 3921
Bork, Judge Robert H., Letter to Chairman Biden, with attachments,
October 1, 1987 756, 3911
Gordon, Judge James F., Letter to Chairman Biden, August 24, 1987 136, 808
Gordon, Judge James F., Letter to Judge Bork, December 17, 1982.... 143, 768,
3923
Gordon, Judge James F., Affidavit, October 2, 1987 4628
Harrison, John, Declaration, September 28, 1987 772, 3927
Hufstedler, Shirley M., Letter to Senator Kennedy, October 3, 1987 4648
Larkin, Paul, Declaration, September 25, 1987 769, 3924
Lee, Joseph D., Affidavit, with attachments, October 2, 1987 4762
Luff, Ruth, Affidavit, September 25, 1987 775, 3930
Robb, Judge Roger, Memorandum to Judges Bork and Gordon, March 19,
1982 144,761,3916
Robb, Judge Roger, Memorandum to Judges Bork and Gordon, October 5,
1982 140,765,3920
Tachau, David Brandeis, Affidavit, October 1, 1987 6062
Vaughn, Jerald:
Testimony 2038
Volk, Kenneth:
Letter to Senator Simpson, September 24, 1987 2275
Vorenberg, James:
Washington Council of Lawyers:
Letter from Dennis A. Henigan to Chairman Biden, September 18, 1987.... 6108
Washington Legal Foundation:
Washington Post, The:
Belter, Leonard W., Letter to the Editor, September 22, 1987 2233
LI
Cutler, Lloyd N., "Judge Bork: Well Within the Mainsteam," September Pa&e
16, 1987 247,2175
Haberman, Joshua O., Letter to the Editor, August 6,1987 311, 3018
Halverson, James T., Letter to the Editor, August 7, 1987 388, 2276
"Senate Democrats Ask Independent Special Prosecutor," October 31,
1973 632
Watergate:
American Bar Association, Minutes of meeting with Judge Bork (1987
nomination) 1250
American Bar Association, Excerpts from William Coleman's Memoran-
dum on Robert Bork for the 1982 report 1258
Ben-Veniste, Richard and Frampton, George Jr., Stonewall: The Real
Story of the Watergate Prosecution 142 (Simon and Schuster 1977) 639
Black, Charles L., Jr., Letter to The New York Times, July 25, 1973 200
Black, Charles L., Jr., Letter to Congressman Bob Eckhardt, July 30, 1973 205
Black, Charles L., Jr., "Mr. Nixon, the Tapes, and Common Sense," The
New York Times, undated 203, 205
Bork, Judge Robert H., Letter to Alexander Haig, July 31,1973 199
Bork, Judge Robert H., Letter to Alexander Haig, August 3, 1973 212
Bork, Judge Robert H., Letter to Leonard Garment, August 3, 1973 215
Bork, Judge Robert H., Letter to Senator Kennedy in response to the
Senator's November 16, 1973 letter, undated 223
Buchanan, Patrick, Memorandum to Alexander Haig, August 3,1973 202
Congressional Record, Excerpt on "Obtaining the White House Tapes,"
August 1, 1973 213
Federal regulations, Creation of the Watergate Special Prosecution Force. 3125
Federal regulations, Abolition of the Watergate Special Prosecution
Force, October 23,1973 3210
Feeney, Floyd and Mahoney, Barry, letter to Chairman Biden, October 5,
1987 4552
Feeney, Floyd and Mahoney, Barry, "The Lawfulness of Robert Bork's
Firing of the Watergate Special Prosecutor," October 6, 1987 4554
Frampton, George, Prepared Statement 3197
Frampton, George, Testimony 3194
Haig, Alexander, Memorandum to President Nixon, August 2, 1973 198
Haig, Alexander, Memorandum to President Nixon, August 8, 1973 204
Hearings Before the Committee on the Judiciary, "Nomination of Elliot
Richardson to be Attorney General," 93rd Cong., 1st Sess., May 9, 10,
14, 15, 21 and 22, 1973, p. 185 3128
Kennedy, Senator Edward M., Letter to Robert Bork, November 16, 1973.. 218
Lacovara, Philip, Statement, September 1987 3214
Morrison, Alan B., Statement ' Concerning Nader v. Bork and the Nomi-
nation of Judge Robert H. Bork to be Associate Justice of the Supreme
Court of the United States," October 5, 1987 5941
"Nixon and Bork Reported Split on Prosecutor's Role," The New York
Times, October 29, 1973 636
"Nixon Plan on Prosecutor is Opposed by Mansfield," The New York
Times, October 28, 1973 634
Oaks, Dallin, Prepared Statement 2944
Oaks, Dallin, Testimony 2941
Peterson, Henry E., Statement, September 22, 1987 3222
Richardson, Elliot, Prepared Statement 3116
Richardson, Elliot, Testimony 3112
Ruth, Henry, Testimony 3192
"Senate Democrats Ask Independent Special Prosecutor," The Washing-
ton Post, October 31, 1973 632
Telephone Memorandum, The White House, Augusts, 1973 216
Transcript of Department of Justice "Press Conference of Honorable
Robert H. Bork, Acting Attorney General of the United States," Octo-
ber 24, 1973 595
Winter, Judge Ralph K., Affidavit, September 25, 1987 3225
Weicker, Senator Lowell:
Weiss, Congressman Ted:
Wilken, Madeleine:
LII
Pa e
Wilkey, Malcolm R.: t?
Williams, Wendy:
Testimony 2369
Williamson, Charles M.:
Letter to Senator Hatch, with attachments, September 21, 1987 2624
Winter, Judge Ralph K.:
Affidavit, September 25, 1987 3225
Witness List 6501
Women's Bar Association of the State of New York:
Statement of Committee to Review the Nomination of Judge Robert H.
Bork, September 17,1987 6127
Women's Legal Defense Fund, with Federation of Women Lawyers, Judicial
Screening Fund, NOW Legal Defense and Education Fund, Equal Rights
Advocates:
Yale Law School students:
Record of opposition to Judge Bork's confirmation, September 11, 1987 6144
Young, Andrew:
Testimony 1067
Youth for Democratic Action:
Statement of Daniel Press, October 1987 6145
Zebley, John:
TUESDAY, SEPTEMBER 15, 1987

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room SR-
325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr.
(chairman of the committee) presiding.
Also present: Senators Thurmond, Kennedy, Metzenbaum,
DeConcini, Leahy, Heflin, Simon, Hatch, Simpson, Grassley, Spec-
ter, Humphrey.
The CHAIRMAN. The hearing will come to order, please.
I welcome everyone here this morning, Judge Bork, his distin-
guished panel of introducers, my colleagues, and the public, and I
would like to take just a moment at the outset to explain how we
are going to proceed today and from here on, I hope.
It is the ordinary practice of the committee in a hearing like
this, Judge, to have opening statements from all of my colleagues,
and then to invite the presenters of the nominee to speak, and then
ask the nominee for his or her statement. But we are going to
change the beginning just a little bit today to accommodate some
very busy and, quite frankly, very important people.
Today, you have a distinguished panel of introducers that are
here, and what I would like to suggest is thisand I have checked
this with my colleagues. I believe they are all in agreement. Even
though every Senator will have up to 10 minutes to make an open-
ing statement, I will for the time being forego my opening state-
ment; and I understand the distinguished ranking member, Sena-
tor Thurmond, will also. Then we will yield to President Fordand
it is a great honor to have you here, Mr. Presidentand distin-
guished Members of the Congress who will be introducing you.
Then we will come back to opening statements, either Senator
Thurmond or Senator Kennedy, whomever wishes to proceed next,
and finish our opening statements. I suspect that after the intro-
ducers and the opening statements that will, quite frankly, take
the better part of the morning. So I beg your indulgence, Judge, to
sit through all the flattering comments that you will hear and all
the questions that you may hear raised.
(1)
Then we will reconvene approximately an hour after we finish.
My hope is we will finish by 1 o'clock or earlier, and we will recon-
vene at 2 o'clock. At that time, I will make a brief opening state-
ment. I will invite you to make your statement, and at that time
hopefully introduce your very lovely family that I had an opportu-
nity to meet just a few moments ago.
If that is agreeable with my colleagues, without any further
waste of time, I welcome you, Mr. President. It truly is an honor to
have you here. As you know, on both sides of the aisle you have
had nothing but friends. We miss you here in Washington. Quite
frankly, most of us envy you; not only that you have been Presi-
dent
[Laughter.]
The CHAIRMAN. Senator Dole and I do not care much about that.
But not only that you have been President, but that you seem to be
flourishing in the status of a former President as well.
Mr. President, please, your opening statement.
STATEMENT OF HON. GERALD R. FORD
President FORD. Mr. Chairman, distinguished members of the
Senate Committee on the Judiciary. First, Mr. Chairman, I thank
you for your very kind and generous introduction. It is a very high
honor and a very rare privilege for me to return to Capitol Hill
and to appear before this distinguished committee of the United
States Senate.
Although I never had the privilege of serving as a member of the
United States Senate, I did have the great honor of 25 V2 years as a
member of the House of Representatives. During my years in the
House, my 9 months as President of the Senate, and 2V2 years as
President of the United States, I had an abiding respect for the
Senate, especially its unique and special responsibilities under the
Constitution.
In addition, in my 2&xh years in the Nation's capital, I developed
warm and treasured friendships with members of the Senate on
both sides of the aisle. I am pleased to see some of these cherished
friends on the panel on this occasion.
My appearance before the committee is for the purpose of intro-
ducing Hon. Robert Bork, judge of the U.S. Circuit Court of Ap-
peals for the District of Columbia, who has been nominated by
President Reagan for service as an Associate Justice of the Su-
preme Court of the United States.
Under the Constitution, article II, section 2, the President has
the authority and the responsibility of nominating an individual
for the position of Justice on the United States Supreme Court.
The Senate, under article II, section 2, has the duty of advise and
consent for presidential nominees to the Supreme Court.
During my service in the Presidency, I had the opportunity and
the honor to propose to the Senate an individual for confirmation
to serve on the nation's highest judicial body. I consider the nomi-
nation of a Supreme Court Justice one of the most important re-
sponsibilities of a President of the United States. It is vital that the
nominee selected be of unquestioned character, broad training in
the law, in-depth experience in the legal profession, and have a ca-
pability to analyze the facts with objectivity and articulate one's
decision on the basis of the law and the Constitution.
It was my honor and privilege as President to submit the name
of Judge John Paul Stevens to the Senate for confirmation. The
then U.S. Attorney General, Edward Levi, was invaluable in the se-
lection process to fill this vacancy. We extensively reviewed Judge
Stevens' background in private practice, as a U.S. District Court
judge, and as a judge of the Seventh Circuit of the Court of Ap-
peals.
Attorney General Levi and I personally read a number of his de-
cisions. On the basis of his superb qualifications, I submitted his
name to the Senate, and he was promptly and overwhelmingly con-
(3)
firmed. I am very proud of Justice Stevens' superb record on the
Supreme Court for the past 12 years. While I have not always
agreed with Justice Stevens, such differences in no way whatsoever
undercut my faith in his effective and dedicated service on the Su-
preme Court.
Because I have such high regard for Justice Stevens, I am
pleased to note that on July 17, 1987, while attending a meeting of
lawyers and judges in Omaha, Nebraska, Justice Stevens stated
that Judge Bork, and I quote, "is a very well-qualified candidate
and one who will be a very welcome addition to the Court."
I have known Judge Bork since the mid-1960s when he was a dis-
tinguished faculty member of the Yale University Law School, my
alma mater. While teaching at the Yale Law School for 15 years,
he held two endowed chairs in recognition of his achievements as a
scholar. He is an honored graduate of the University of Chicago
Law School and managing editor of the Law Review.
Prior to law school, he served in the United States Marines and,
while in law school, interrupted his legal education for a second
Marine Corps tour. He had broad experience in private practice as
a partner with Kirkland & Ellis, a nationally known prestigious
law firm.
My friendship with Robert Bork expanded during his service as
Solicitor General, 1973-1977, while I was the Republican leader in
the House of Representatives, Vice President, and President. For
the record, he was unanimously confirmed as Solicitor General.
Just months into the job as Solicitor General, Robert Bork was
faced with a crisis not of his own making. President Nixon, during
the Watergate investigation, ordered the dismissal of Special Pros-
ecutor Archibald Cox. Judge Bork, when thrust into a very difficult
situation, acted with integrity to preserve the continuity of both
the Justice Department and the special prosecutor's investigation. I
think in retrospect that history has shown that his performance
was in the Nation's interest.
When I became President August 9, 1974, I requested that he
stay on as Solicitor General, and he distinguished himself as the
principal government advocate before the Supreme Court during
my administration. The Ford administration and the nation bene-
fited enormously from this outstanding service.
I was especially pleased that President Reagan nominated Robert
Bork for judge of the U.S. Circuit Court of Appeals for the District
of Columbia, and that the United States Senate confirmed him
unanimously just 5 short years ago. In my judgment, in my opin-
ion, Judge Bork's record on the bench has been exemplary.
There are four kinds of occupations that a lawyer can have: pri-
vate practitioner, law professor, government lawyer and judge.
Robert Bork has distinguished himself in not one, but in all four
endeavors. A renowned Federal Appeals Court judge, former Solici-
tor General of the United States, professor of law at Yale Universi-
ty, and twice a partner in one of the nation's leading law firms.
Judge Robert Bork is uniquely qualified to sit on the United
States Supreme Court. It is, therefore, my distinct honor and great
pleasure to introduce to this distinguished committee a man who,
as Chief Justice Burger noted, may well be the most qualified
nominee to the Supreme Court in more than half a century.
Mr. Chairman and members of this distinguished committee of
the United States Senate, I strongly urge affirmative committee
consideration and favorable approval by the U.S. Senate.
Thank you very much, Mr. Chairman.
[Prepared statement follows:]
STATEMENT BY PRESIDENT GERALD R. FORD
AT
CONFIRMATION HEARINGS
OF
JUDGE ROBERT H. BORK
TO BE AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Mr. Chairman, distinguished members of the Senate
Committee on the Judiciary:
It is a high honor and rare privilege for me to return
to Capitol Hill and to appear before this distinguished
committee of the U.S. Senate.
Although I never had the privilege of serving as a
United States Senator, I did have the great honor of 25J
years as a member of the House. During my years in the
House, my nine months as President of the Senate and 2\ years
as President of the United States, I had an abiding respect
for the Senate, especially its unique and special
responsibilities under our Constitution. In addition, in my
28i years in the nation's capital I developed warm and
treasured friendships with members of the Senate, on both
sides of the aisle. I am pleased to see some of these
cherished friends on the panel on this occasion.

My appearance before the Committee is for the purpose of
introducing the Honorable Robert Bork, Judge of the U.S.
Circuit Court of Appeals for the District of Columbia who has
been nominated by President Reagan for service as an
Associate Justice of the Supreme Court of the United States.
Under the Constitution, Article II, Section 2, the
President has the authority and responsibility of nominating
an individual for the position of Justice on the U.S. Supreme
Court. The Senate, under Article II, Section 2, has the duty
of advice and consent for Presidential nominees to the
Supreme Court.
During my service in the Presidency, I had the
opportunity and the honor to propose to the Senate an
individual for confirmation to serve on our nation's highest
judicial body. I consider the nomination of a Supreme Court
Justice one of the most important responsibilities of a
President of the United States. It is vital that the nominee
selected be of unquestioned character, broad training in the
law, in-depth experience in the legal profession, and have a
capability to analyze the facts with objectivity and
articulate one's decision on the basis of law and the
Constitution. It was my honor and privilege as President to
submit the name of Judge John Paul Stevens to the Senate for
confirmation. The then U.S. Attorney General, Edward Levi,
was invaluable in the selection process to fill this vacancy.

8
We extensively reviewed Judge Stevens' background in private
practice, as a U.S. District Court Judge and as a Judge on
the 7th Circuit Court of Appeals. Attorney General Levi and
I personally read a number of his decisions. On the basis of
his superb qualifications, I submitted his name to the Senate
and he was promptly and overwhelmingly confirmed.
I am proud of Justice Stevens' superb record on the
Supreme Court for the past twelve years. While I have not
always agreed with Justice Stevens, such differences in no
way whatsoever undercut my faith in his effective and
dedicated service on the Supreme Court.
Because I have such a high regard for Justice Stevens, I
am pleased to note that on July 17, 1987, while attending a
meeting of lawyers and judges in Omaha, Nebraska, Justice
Stevens stated that Judge Bork "is a very well-qualified
candidate and one who will be a very welcome addition to the
Court."
I have known Judge Bork since the mid 1960s when he was
a distinguished faculty member of the Yale University Law
School, my alma mater. While teaching at the Yale Law School
for 15 years he held two endowed chairs in recognition of his
achievements as a legal scholar.
He is an honor graduate of the University of Chicago Law
School and was managing editor of the law review. Prior to
law school, he served in the U.S. Marines and while in law

school interrupted his legal education for a second Marine
Corps tour.
He had broad experience in private practice as a partner
with Kirkland and Ellis, a nationally-known prestigious law
firm.
My friendship with Robert Bork expanded during his
service as Solicitor General (1973-1977) while I was
Republican Leader in the House of Representatives, Vice
President and President. For the record, he was unanimously
confirmed as Solicitor General.
Just months into the 30b as Solicitor General, Robert
Bork was faced with a crisis not of his making. President
Nixon, during the Watergate investigation, ordered the
dismissal of Special Prosecutor Archibald Cox. Judge Bork,
when thrust into a difficult situation, acted with integrity
to preserve the continuity of both the Justice Department and
the Special Prosecutor's investigation. I think in
retrospect that history has shown that his performance was in
the nation's interest.
When I became President August 9, 1974, I requested that
he stay on as Solicitor General and he distinguished himself
as the principal government advocate before the Supreme Court
during my Administration. The Ford Administration and the
nation -- benefitted enormously from this outstanding
service.
10
I was especially pleased that President Reagan nominated
Robert Bork for Judge on the U.S. Circuit Court of Appeals
for the District of Columbia and that the U.S. Senate
confirmed him unanimously just five short years ago.
In my opinion, Judge Bork's record on the bench has been
exemplary.
There are four kinds of occupations that a lawyer can
have: private practitioner, law professor, government
lawyer, and judge. Robert Bork has distinguished himself in
not one, but in all four endeavors. A renowned federal
appeals court judge, former Solicitor General of the United
States, law professor at Yale University, and twice a partner
in one of the nation's leading law firms.
Judge Robert Bork is uniquely qualified to sit on the
U.S. Supreme Court. It is, therefore, my distinct honor and
pleasure to introduce to this distinguished Committee a man
who, as Chief Justice Burger noted, may well be the most
qualified nominee to the Supreme Court in more than half a
century. I strongly urge affirmative Committee consideration
and favorable approval by the United States Senate.

11
The CHAIRMAN. Thank you very much, Mr. President.
Now, we will go to the Senator Minority Leader, Republican
leader, Senator Bob Dole.
I understand you have a very tight schedule, Mr. President. Do
not feel required to stay. You are excused.
Senator DECONCINI. Mr. Chairman, I wonder if the Chairman
would indulge me to ask the President a question, seeing that he is
going to leave. It will only take 30 seconds.
President FORD. Mr. Chairman, I am delighted and I would be
pleased to stay and respond to questions if you or other members of
the committee would like to pursue that. I have a schedule, but
nothing today is more important than my presence before this com-
mittee on this vital matter.
So I am delighted and honored if somebody on the committee
would
The CHAIRMAN. Well, Mr. President, maybe to accommodate your
schedule, I do not have any questions and I do not think anyone
else does. Obviously, Senator DeConcini has one.
Senator DECONCINI. Mr. Chairman, I am sorry to indulge the
committee, and I know this is different than what you and I talked
about the day before yesterday. I did not realize I had any ques-
tions, but I read your statement this morning very carefully, Mr.
President. I wanted to ask you if you have read any of the opinions
of Judge Bork since he has sat on the circuit court in the District.
President FORD. I have read a limited number. I have read vari-
ous analyses pro and con of those opinions. I have read those that
have been submitted to me by the people that are favorable, and I
have taken the time to read some of the analyses that are critical.
Senator DECONCINI. Mr. President, have you had a chance to
read any of his Law Review articles, in particular the Indiana Law
Review article of 1971, or any of his other Law Review articles that
are of a controversial nature?
President FORD. I have not read individual Law Review articles. I
have read synopses of some of those articles, comments pro and con
by individuals who were interested.
Senator DECONCINI. Thank you, Mr. President. Thank you, Mr.
Chairman.
The CHAIRMAN. Thank you. I appreciate your indulgence.
Mr. President, as I said, you are welcome to stay, but there is
truly no need. I know you have a schedule, and I do not mean to
imply in any way that this is not the single most important thing
to you. I understand that. But I think Judge Bork is well represent-
ed. You are welcome to stay; if your schedule dictates that you go,
please do.
I thank you very, very much for being here. It has been an honor
for the committee. It is not often we have a former President
before this committee. It has been a great honor.
President FORD. Thank you again. Unless there are any ques-
tions, I appreciate very much being excused.
The CHAIRMAN. We have no further questions. Thank you very
much, Mr. President.
Now, we will proceed with the Senate Republican leader, Senator
Dole, who has been a member of this committee for many years.
Welcome back, Bob. Please proceed.
STATEMENT OF SENATOR ROBERT DOLE
Senator DOLE. Mr. Chairman and members of the committee, I
am certainly pleased to have this brief opportunityand I will be
brief. I know the committee has a lot of work to do.
I want to thank my former House colleague and friend for over
25 years, President Ford, for being here this morning. I think his
presence adds a great deal to this hearing. He does have the re-
spect of Republicans and Democrats and has always had it, as far
as I can recall. So I am certainly pleased to see him again. I agree
with the comments made earlier by the chairman about former
Presidents and future Presidents.
I am very pleased to be here for a couple of reasons. There is
more than a little fortuity in the timing and location of these hear-
ings because in 2 days we will be celebrating in Philadelphia the
bicentennial of our Constitution. That Constitution established, of
course, three branches of governmentthe executive, the legisla-
tive, and the judicialeach with a role to play in governing our
nation.
All through this past summer in this very room, members of
Congress explored the complex and dynamic relationship between
the executive and the legislative branches of our Government. In
the process of doing this, they raised the level of public debate on
that relationship.
Now, the committee will explore a different aspect of our consti-
tutional system: the proper scope of the Senate's role in the selec-
tion of Supreme Court Justices.
In Judge Robert Bork, the President has found a man of unques-
tionable ability and integrity. His professional background made
him a leading and obvious candidate for the Supreme Court even
before Justice Powell resigned.
Those who have opposed his nomination and may oppose his
nomination in the future, in my view, have conceded that much.
Many have focused their attention on his ideology. In doing so,
they have found different reasons why they now must oppose, or
why they might oppose in the future, Judge Bork.
I think this hearing is going to be of tremendous significance. We
are all politicians, and we know that 1988 is next year. But I have
got to believe that Republicans and Democrats alike, members of
this committee, take this responsibility very seriously. There are
going to be some tough questions. Judge Bork knows that. Judge
Bork is prepared for that. I believe, in the final analysis, he is
going to be the key factor in this whole confirmation process.
Some of us have indicated our support, and some of us have indi-
cated our opposition. But I have been pleased with what I see de-
veloping. I think we are going to have a very objective effort by
this committee. And I would hope when this nomination comes to
the Senate flooras I believe it willthat we can move with dis-
(12)
13
patch and keep the debate on the same high plane. I know that is
going to be the effort of the distinguished chairman and the distin-
guished ranking member, Senator Thurmond, and others who will
be involved in that debate. I would hope that as part of the leader-
ship, I can be of assistance along with Senator Byrd.
There are a number of issues that do not lend themselves to easy
answers or instant analysis. They certainly do not lend themselves
to slogans or statistics.
I would ask the committee and the American people to take the
time to understand Judge Bork's approach to the Constitution.
That approach is based upon "judicial restraint," the principle that
judges are supposed to interpret the law and not make it.
Now, Judge Bork did not invent this concept. It has been around
for a long time. One of the most eloquent advocates was Oliver
Wendell Holmes.
Similarly, his views on many cases are not original. As I under-
stand, and I have not read all the articles, but his writings on the
right to privacy are difficult to distinguish from those of Hugo
Black.
There are many similarities, and I am certain the committee will
go into it case-by-case, Law Review-by-Law Review; they will make
the final determination.
Now, it has been some time since this nomination was made. I
would say at the outset some of us were critical of that. But I
would guess in retrospect it may have taken that much time, with
the August recess, to prepare for this very important hearing.
There is tremendous interest in the Bork nomination across the
country. Wherever you go, and some of us go a lot of places, this is
generally question no. 1 or no. 2 in any town meeting in America.
So the American people are tuned in. The American people are
ready for a fair and impartial, tough hearing. I have got to say,
Judge Bork, you are probably going to have one. And I know you
are prepared for it. I want to join my colleagues here to indicate
my appreciation for having an opportunity to help introduce Judge
Bork this morning.
[The statement of Senator Dole follows:]
86-974 0-89-3
14
News from Senator
BOB DOLE
(R - Kansas) SH 141 Hart Building, Washington, D.C. 20510-1601
FOR IMMEDIATE RELEASE CONTACT: WALT RIKER, DALE TATE

SEPTEMBER 15, 1987 (202) 224-3135
INTRODUCTION OF JUDGE ROBERT BORK TO THE

SENATE JUDICIARY COMMITTEE
MR. CHAIRMAN, IT IS MY GREAT PLEASURE AND HONOR TO APPEAR IN
SUPPORT OF THE NOMINATION OF JUDGE ROBERT H. BORK, A MEMBER OF
THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT AND THE PRESIDENT'S NOMINEE TO FILL THE VACANCY THAT
EXISTS ON THE SUPREME COURT.
THERE IS MORE THAN A LITTLE FORTUITY IN THE TIMING AND
LOCATION OF THESE HEARINGS. IN TWO DAYS WE WILL BE CELEBRATING
IN PHILADELPHIA THE BICENTENNIAL OF OUR CONSTITUTION. THAT
CONSTITUTION ESTABLISHED, OF COURSE, THREE BRANCHES OF
GOVERNMENT, THE EXECUTIVE, THE LEGISLATIVE, AND THE JUDICIAL,
EACH WITH A ROLE TO PLAY IN GOVERNING OUR NATION.
THIS PAST SUMMER, IN THIS VERY ROOM, MEMBERS OF CONGRESS
EXPLORED THE COMPLEX AND DYNAMIC RELATIONSHIP BETWEEN THE
EXECUTIVE AND THE LEGISLATIVE BRANCHES OF OUR GOVERNMENT. IN THE
PROCESS OF DOING THIS, THEY RAISED THE LEVEL OF PUBLIC DEBATE ON
THAT RELATIONSHIP.
THIS COMMITTEE WILL NOW EXPLORE A DIFFERENT ASPECT OF OUR
CONSTITUTIONAL SYSTEM: THE PROPER SCOPE OF THE SENATE'S ROLE IN
THE SELECTION OF SUPREME COURT JUSTICES.
IN JUDGE ROBERT BORK THE PRESIDENT HAS FOUND A MAN OF
UNQUESTIONABLE ABILITY AND INTEGRITY. HIS PROFESSIONAL
BACKGROUND MADE HIM A LEADING AND OBVIOUS CANDIDATE FOR THE
SUPREME COURT EVEN BEFORE JUSTICE POWELL RESIGNED
THOSE WHO HAVE OPPOSED HIS NOMINATION HAVE ALL BUT CONCEDED
THIS MUCH, AND HAVE FOCUSED THEIR ATTENTION ON HIS SO-CALLED
IDEOLOGY. IN DOING SO, THEY HAVE COINED SLOGANS AND COMPILED
STATISTICS THAT, IN MY OPINION, PRESENTED A VERY DISTORTED
PICTURE OF JUDGE BORK'S RECORD.
FORTUNATELY, JUDGE BORK HILL SOON HAVE AN OPPORTUNITY TO SET
THOSE CRITICS STRAIGHT. AS HE DOES SO, I THINK THAT THE AMERICAN
PEOPLE WILL COME TO UNDERSTAND, AS THIS COMMITTEE HAS UNDERSTOOD
FOR SOME TIME, THE SUBTLETY AND COMPLEXITY OF THE ISSUES
15
- a. -
CONFRONTED BY THE SUPREME COURT. AS I AM SURE HE WILL TELL YOU,
THOSE ISSUES DO NOT LEND THEMSELVES TO EASY ANSWERS OR INSTANT
ANALYSIS. THEY CERTAINLY DON'T LEND THEMSELVES TO SLOGANS OR
STATISTICS.
I WOULD ASK THE COMMITTEE AND THE AMERICAN PEOPLE TO TAKE THE
TIME TO UNDERSTAND JUDGE BORK'S APPROACH TO THE CONSTITUTION.
THAT APPROACH IS BASED UPON "JUDICIAL RESTRAINT," THE PRINCIPLE
THAT JUDGES ARE SUPPOSED TO INTERPRET THE LAW, NOT MAKE IT.
JUDGE BORK DID NOT, OF COURSE, INVENT THIS CONCEPT. IT FOUND
ONE OF ITS EARLIEST, AND MOST ELOQUENT, ADVOCATES IN OLIVER
WENDELL HOLMES.
SIMILARLY, JUDGE BORK'S VIEWS ON MANY ISSUES OF
CONSTITUTIONAL LAW ARE NOT ORIGINAL. HIS WRITINGS ON THE RIGHT
TO PRIVACY, FOR EXAMPLE, ARE DIFFICULT TO DISTINGUISH FROM THOSE
OF HUGO BLACK. HIS POSITIONS IN THE AREA OF CRIMINAL PROCEDURE
ARE ALMOST IDENTICAL TO THOSE ENDORSED BY LEWIS POWELL.
IF THIS COMMITTEE DOES, IN FACT, DECIDE TO CONSIDER JUDGE
BORK'S SO-CALLED IDEOLOGY, IT SHOULD NOT IGNORE THESE
PRECEDENTS. NOR SHOULD IT SETTLE FOR CATCH-PHRASES AND SLOGANS
WHEN REAL ANALYSIS IS IN ORDER. IT SHOULD, IN SHORT, TAKE THE
TIME TO INQUIRE AND UNDERSTAND.
I HAVE A PARTICULAR INTEREST IN KEEPING THE DEBATE ON A HIGH
PLANE. WHEN JUDGE BORK'S NOMINATION ARRIVES ON THE SENATE FLOOR,
AS I AM SURE IT WILL, THE DEBATE THERE WILL MIRROR WHAT TAKES
PLACE HERE. I WOULD LIKE TO HELP POINT THAT DEBATE IN A
DIRECTION THAT WILL EDIFY BOTH THE SENATE AND THE AMERICAN
PEOPLE. I ALSO HAPPEN TO BELIEVE THAT JUDGE BORK'S WRITINGS AND
RECORD, IF CAREFULLY EXAMINED AND CONSIDERED, MAKE HIM AN
OUTSTANDING CANDIDATE FOR THE SUPREME COURT.
BEFORE I CONCLUDE, LET ME REMIND THE COMMITTEE THAT A VACANCY
HAS EXISTED ON THAT COURT FOR MORE THAN TWO MONTHS NOW. THE
COURT WILL OPEN ITS NEW TERM IN LESS THAN 3 WEEKS. I WOULD ASK
THE COMMITTEE TO APPROACH ITS TASK WITH ALL DELIBERATE SPEED.
I LOOK FORWARD TO RECEIVING THE NOMINATION ON THE SENATE
FLOOR.
THANK YOU, MR. CHAIRMAN.
16
The CHAIRMAN. Thank you very much, Senator. Again, I know
your duties exceed those of us on the committee here in your lead-
ership position. You are welcome to stay, obviously, but we under-
stand if you do not.
Senator DOLE. I want to stay for the other two statements.
The CHAIRMAN. My next door neighbor in this building is the
Senator from Missouri, Senator Danforth. Welcome, and if you
would, proceed.
STATEMENT OF SENATOR JOHN C. DANFORTH
Senator DANFORTH. Mr. Chairman, thank you very much, and
members of the committee. Normally, Presidential nominees ask
Senators from their home State to present them to Senate commit-
tees. Judge Bork resides in the District of Columbia, so he has
turned to the next available option and has asked a former student
of his to be here today.
His first year on the faculty of Yale Law School was my final
year as a student there. He taught me all I ever knew about anti-
trust. For those who wonder about his compassion and humanity, I
passed Professor Bork's course.
Mr. Chairman, I am genuinely honored to be here today. Twenty-
five years after that law school class, my memories are dim about
the details of antitrust law, but I have a clear recollection of Bob
Bork, the teacher. Even in his first class, he was a first-rate profes-
sor. He has since told me that he was panicked when he stood
before that class. He certainly did not show it. By every indication,
he loved teaching. His eyes sparkled; so did his sense of humor. He
delighted in saying things to provoke responses from his students.
Far from playing the self-important pedagogue, Bob Bork delighted
in the give-and-take of the classroom in the clash of ideas.
He did not require us to receive his thoughts as revealed truth.
He taught us to think for ourselves. He held strong views; every
good law professor does. But he used those views to evoke a re-
sponse from his students. He encouraged argument. He respected
dissent. This to him was the joy of classroom teaching.
Judge Bork has said that his own philosophy of the law has
evolved over the 25 years since I knew him in class. He is the best
one to explain just how that evolution occurred, and I am sure he
will do just that, clearly and unequivocally.
My point is simply this: Those who say that Judge Bork is an un-
yielding ideologue are not describing the man I know. In my expe-
rience, unyielding ideologues do not resemble Judge Bork. They do
not encourage dissent; they do not have a sense of humor; and they
do not evolve in their own thinking.
Mr. Chairman, having made these comments about Judge Bork,
the person, I do not believe that the Senate's decision will or
should be made on the basis of personality. The issue before us is
far more fundamental and far more important than that.
In this confirmation, we in the Senate will be expressing our
views on the role and power of the U.S. Supreme Court. The
straightforward issue is the readiness of the Court to strike down
the acts of the legislative branch of government, federal or State.
The power of the Court to nullify legislation is restrained only by
the Court itself. As Justice Hughes once said, "The Constitution is
what the judges say it is."
(17)
18
A court which is willing to read novel meanings into the Consti-
tution has the power to do so. Judge Bork is an advocate of judicial
restraint. His view, as I understand it, is this: If the Supreme Court
strikes down a legislative act, its decision must be based on sound
legal reasoning, not on the personal opinions of the Court about
the wisdom of the legislation dressed up in legal terminology.
Judge Bork's judicial philosophy is open to fair debate by able
people of good will. I happen to agree with Judge Bork's view of
judicial restraint; some do not. Some believe that the Court should
stand at the ready to supplant legislative opinion with its own.
Whether one agrees with Judge Bork or disagrees with him, his
is not a novel position. It reaffirms the faith we place in the demo-
cratic process. Judge Bork stands on a highly respectable tradition,
including such giants as Justice Frankfurter and his late colleague
at Yale, Professor Alexander Bickel. He would state his position
with great intellectual force in the Supreme Court, but with good
humor and civility.
Mr. Chairman, in this bicentennial year of the Constitution, the
Senate now commences a most important debate. It is not about
Judge Bork, the person, however much I like and respect him. It is
about the power of the Supreme Court and how, if at all, it should
restrain that power.
The CHAIRMAN. Thank you very much, Senator.
19
STATEMENT BY SENATOR JOHN C. DANFORTH

ON THE NOMINATION OF JUDGE ROBERT BORK TO THE SUPREME CO0RT
Before the Senate Judiciary Committee
September 15, 1987
Mr. Chairman, members of the Committee: Normally, presidential
nominees ask Senators from their home state to present them to Senate
Committees. Judge Bork resides in the District of Columbia, so he has
turned to the next available option and has asked a former student of
his be here today. His first year on the faculty of Yale Law School
was my final year as a student there. He taught me all I ever knew
about antitrust. For those who wonder about his compassion and
humanity, I passed Professor Bork's course. Mr. Chairman, I am
genuinely honored to be here today.
Twenty-five years after that law school class, my memories are dim
about the details of antitrust law. But I have a clear recollection of
Bob Bork, the teacher. Even in his first class, he was a first-rate
professor. He has since told me that he was panicked when he stood
before that class. He certainly didn't show it. By every indication,
he loved teaching. His eyes sparkled. So did his sense of humor. He
delighted in saying things to provoke responses from his students. Far
from playing the self-important pedagogue. Bob Bork delighted in the
give and take of the classroom, in the clash of ideas. He did not
require us to receive his thoughts as revealed truth. He taught us to
think for ourselves. He held strong views; every good law professor
does. But he used those views to evoke a response from his students.
He encouraged argument. He respected dissent. This, to him, was the
joy of classroom teaching.
Judge Bork has said that his own philosophy of the law has evolved
over the 25 years since I knew him in class. He is the best one to
explain just how that evolution occurred, and I am sure he will do just
that, clearly and unequivocally. My point is simply this. Those who
say that Judge Bork is an unyielding ideologue are not describing the
man I know. In my experience, unyielding ideologues do not resemble
Judge Bork. They do not encourage dissent; they do not have a sense of
humor, and they do not evolve in their own thinking.
Mr. Chairman, having made these comments about Judge Bork the
person, I do not believe that the Senate's decision will or should be
made on the basis of personality. The issue before us is far more
fundamental and far more important than that. In this confirmation, we
in the Senate will be expressing our views on the role and the power of
the United States Supreme Court.
The straightforward issue is the readiness of the Court to strike
down the acts of the legislative branch of government, federal or
state. The power of the Court to nullify legislation is restrained
only by the Court itself. As Justice Hughes once said, "The
Constitution is what the Judges say it is." A court which is willing
to read novel meanings into the Constitution has the power to do so.
Judge Bork is an advocate of judicial restraint. His view, as I
understand it, is this: If the Supreme Court strikes down a
legislative act, its decision must be based on sound legal reasoning,
not on the personal opinions of the Court about the wisdom of the
legislation, dressed up in legal terminology.
Judge Bork's judicial philosophy is open to fair debate by able
people of good will. I happen to agree with Judge Bork's view of
judicial restraint. Some do not. Some believe that the Court should
stand at the ready to supplant legislative opinion with its own.
Whether one agrees with Judge Bork or disagrees with him, his is
not a novel position. It reaffirms the faith we place in the
democratic process. Judge Bork stands in a highly respectable
tradition, including such giants as Justice Frankfurter and his late
colleague at Yale, Professor Alexander Bickel. He would state his
position with great intellectual force in the Supreme Court, but with
good humor and civility.
Mr. Chairman, in this bicentennial year of the Constitution, the
Senate now commences a most important debate. It is not about Judge
Bork the person, however much I like and respect him. It is about the
power of the Supreme Court and how, if at all, it should restrain that
power.
20
The CHAIRMAN. We welcome from the House, Congressman Ham-
ilton Fish. Congressman Fish, welcome. Please proceed.
STATEMENT OF CONGRESSMAN HAMILTON FISH, JR.
Mr. FISH. Thank you, Mr. Chairman and members of this distin-
guished committee. I greatly appreciate your courtesy in inviting
me to participate in these very important proceedings. Up to now, I
did not realize why I was invited, but having heard the reasons for
the other people being present, I realize that in this ecumenical
spirit they wanted one Harvard graduate on this panel.
Like yourself, as a Member of Congress who serves on the House
Judiciary Committee, I naturally have a strong and abiding inter-
est in the quality, effectiveness and constitutional legitimacy of our
federal judiciary. There are many relevant factors to consider in
connection with an individual nominated to serve on the United
States Supreme Court. Obviously, this includes intellect, legal
training, practical legal experience, demonstrated professional com-
petence and personal integrity. A record of legal scholarship, while
historically not always a prerequisite, is also an important consid-
eration when relevant.
Finally, and very importantly, if the nominee has prior judicial
experiencewhat does that record reveal both in terms of legal
soundness and judicial temperament? But that is what the Senate
confirmation process is about: reviewing these factors, hearing both
sides on the merits of a particular nominee, and ultimately decid-
ing in the best interests of our nation.
Certainly, no one can look at the career of Judge Bork without
being impressed with his extraordinary credentials. A graduate of
the University of Chicago Law School, a Phi Beta Kappa and man-
aging editor of that institution's Law Review, Robert Bork has
twice served on the faculty of Yale Law School and was a professor
at that prestigious institution for a total of 15 years. Mr. Bork, as
you have been told, has also been in the private practice of law on
numerous occasions during his career and earned a national repu-
tation as an outstanding litigator. From 1973 to 1977, Robert Bork
was Solicitor General of the United States, a job universally recog-
nized as one requiring the talents of a "lawyer's lawyer."
Since 1982, Robert Bork has served as judge on the Circuit Court
of Appeals for the District of Columbia and during that time has,
in my judgment, accumulated a remarkable record; a record, I re-
spectfully submit, that should be most relevant to this committee's
consideration. Of the 426 cases in which he has participated, Judge
Bork has been the author of the majority opinion in 106 instances.
With respect to those 106 majority opinions, it is deserving of em-
phasis that he never has been reversed by the Supreme Court. Fur-
thermore, of the 401 cases in which Judge Bork joined with the ma-
jority, none have been reversed by the U.S. Supreme Court.
In addition, Judge Bork authored dissenting opinions in 25 re-
maining cases, and the Supreme Court adopted the viewpoint ex-
pressed by Judge Bork in those dissents on six different occasions.
(21)
22
Many have offered the observation that Judge Bork may well have
the most remarkable record on appeal of any currently sitting U.S.
Federal judge. I think it is a fair conclusion from these statistics
that Judge Bork's judicial rulings during these 5 years have not
been at variance with the prevailing views of the current Supreme
Court.
Frankly, Mr. Chairman, I find it personally difficult to reconcile
some of the charges that have been leveled against Judge Bork
with his record since becoming an appellate federal judge. His judi-
cial philosophy, in practice as well as in theory, is fully consistent
with traditional American legal thought. For Robert Bork, the role
of the judge is to apply the intent of the legislature to a legal fact
situation. Following the President's nomination of Judge Bork to
the Supreme Court, I reviewed a number of his opinions in the Dis-
trict of Columbia Circuit Court with particular emphasis on mat-
ters of great concern to methe first amendment and civil rights
cases. Those cases demonstrate that, in application, the result of
Judge Bork's philosophy can often be civil libertarian in nature.
They certainly do not disclose a view that our Constitution should
be other than contemporary and workable in a modern society.1
From his perspective, a judge may not insert his own personal
preferences or political philosophy into a case. The media calls it
exercising "judicial restraint," but Judge Bork states it more clear-
ly as the intellectual rejection of "judicial imperialism." That is the
term he applies to judges who would substitute their private per-
sonal philosophy or private political views for that of the legisla-
tors who actually wrote the laws. He recognizes that judges are not
elected and that under our system of government, it is the elected
representatives that write and amend the laws.
He asks the following kinds of questions: What does the Statute
say? Does the statute permit a government agency, a private orga-
nization, or an individual to act in a particular manner? Do the
regulations issued by the agency reflect the statutory authority
given to that agency? Does the language of the Constitution allow
the outcome sought by the litigant in this particular case? These,
to me, do not sound like the questions of someone outside the
realm of traditional American legal thought. More specifically,
they sound exactly like the types of questions that a judge ought to
ask.
I have every confidence that these proceedings will allow the dis-
tinguished members of this committee to probe and to analyze the
remarkable qualifications of this outstanding lawyer and judge.
Robert Bork deserves to be judged for the lawyer he actually is and
on the basis of how he actually rendered judicial decisions. These
hearings afford an opportunity to elicit his views directly rather
than leave the record to theoretical speculation.
Mr. Chairman, this man is qualified to be an Associate Justice of
the Supreme Court of the United States on the basis of virtually
every logical criterion. He was an excellent courtroom lawyer, is a
1
See: Planned Parenthood Federation of America v. Heckler, 712 F.2d 650, 665-668 (1983);
Lebron v. Washington Metropolitan Area Transit Authority, 749 F.2d 893 (1984); Quincy Cable
TV, Inc. v. Federal Communications Commission, 768 F.2d 1434 (1985); County Council ofSumter
County, South Carolina v. United States, 596 F.Supp. 35 (1984); and Emory v. Secretary of Navy,
819 F. 2d (1987).
23
widely recognized scholar, and has had an exceptional record as an

appellate jurist. I urge this committee, as I know that it will, to
judge this man fairly and to review all the facts in this case before
a final judgment is rendered. Thank you.
[The statement of Mr. Fish follows:]
24
STATEMENT OF THE HONORABLE HAMILTON FISH, JR.

BEFORE THE CQflMTTEE ON THE JUDICIARY
OF THE UNITED STATES SENATE
SEPTEMBER 15, 1987
MR. CHAIRMAN AND MEMBERS OF THIS DISTINGUISHED COMMITTEE, I
GREATLY APPRECIATE YOUR COURTESY IN INVITING ME TO PARTICIPATE
IN THESE VERY IMPORTANT PROCEEDINGS.
LIKE YOURSELVES, AS A MEMBER OF CONGRESS WHO SERVES ON THE
HOUSE JUDICIARY COMMITTEE, 1 HAVE A STRONG AND ABIDING INTEREST
IN THE QUALITY, EFFECTIVENESS AND CONSTITUTIONAL LEGITIMACY OF
OUR FEDERAL JUDICIARY. THERE ARE MANY RELEVANT FACTORS TO
CONSIDER IN CONNECTION WITH AN INDIVIDUAL NOMINATED TO SERVE ON
THE UNITED STATES SUPREME COURT. OBVIOUSLY, THIS INCLUDES
INTELLECT, LEGAL TRAINING, PRACTICAL LEGAL EXPERIENCE, DEMON-
STRATED PROFESSIONAL COMPETENCE, AND PERSONAL INTEGRITY. A
RECORD OF LEGAL SCHOLARSHIP, WHILE HISTORICALLY NOT ALWAYS A
PREREQUISITE, IS ALSO AN IMPORTANT CONSIDERATION WHEN RELEVANT.
FINALLY, AND VERY IMPORTANTLY, IF THE NOMINEE HAS PRIOR JUDICIAL
EXPERIENCE " WHAT DOES THAT RECORD REVEAL BOTH IN TERMS OF LEGAL
SOUNDNESS AND JUDICIAL TEMPERAMENT? BUT THAT IS WHAT THE SENATE
CONFIRMATION PROCESS IS ABOUT "" REVIEWING THESE FACTORS, HEARING
BOTH SIDES ON THE MERITS OF A PARTICULAR NOMINEE, AND ULTIMATELY
DECIDING IN THE BEST INTERESTS OF OUR NATION.

25
2
CERTAINLY, NO ONE CAN LOOK AT THE CAREER OF JUDGE BORK
WITHOUT BEING IMPRESSED WITH HIS EXTRAORDINARY CREDENTIALS. A
GRADUATE OF THE U N I V E R S I T Y OF C H I C A G O LAW S C H O O L , A P H I BETA
KAPPA AND MANAGING EDITOR OF THAT INSTITUTION'S LAW REVIEW,
KOBT'RT BORK HAS TWICE SERVED ON THE FACULTY OF YALE LAW SCHOOL
AND WAS A PROFESSOR AT THAT PRESTIGIOUS INSTITUTION FOR A TOTAL
OF 15 YEARS. MR. TIORK HAS ALSO BEEN IN THE PRIVATE PRACTICE OF
LAW ON NUMEROUS OCCASIONS DURING HIS CAREER AND EARNED A NATIONAL
REPUTATION AS AN OUTSTANDING LITIGATOR. FROM 1973 TO 1977,
KOBERT BORK WAS THE SOLICITOR GENERAL OF THE UNITED STATES " A
JOB THAT IS UNIVERSALLY RECOGNIZED AS ONE REQUIRING THE TALENTS
OF A "LAWYER'S LAWYER".
SINCE 1982, ROBERT BORK HAS SERVED AS A JUDGE ON THE CIRCUIT
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA AND DURING THAT
TIME HAS ACCUMULATED A REMARKABLE RECORD; A RECORD, I RESPECT-
FULLY SUBMIT, THAT SHOULD BE MOST RELEVANT TO THIS COMMITTEE'S
CONSIDERATION. UF THE 426 CASES IN WHICH HE HAS PARTICIPATED,
JUDGE BORK HAS BEEN THE AUTHOR OF THE MAJORITY OPINION IN 106
INSTANCES. WITH RESPECT TO THOSE 106 MAJORITY OPINIONS, IT IS
DESERVING OF EMPHASIS THAT HE NEVER HAS BEEN REVERSED BY THE
SUPREME COURT. FURTHERMORE, OF THE 401 CASES IN WHICH JUDGE BORK
JOINED WITH THE MAJORITY, NONE HAVE BEEN REVERSED BY THE SUPREME
IOURT. JUDGE BORK AUTHORED DISSENTING OPINIONS IN 25 REMAINING
CASES, AND THE SUPREME COURT ADOPTED THE VIEWPOINT EXPRESSED BY
JUDGE BORK IN THOSE DISSENTS ON SIX DIFFERENT OCCASIONS. MANY
HAVE OFFERED THE OBSERVATION THAT JUDGE BORK MAY WELL HAVE THE
26
3
MOST REMARKABLE RECORD ON APPEAL OF ANY C U R R E N T L Y SITTING U N I T ED
S T A T E S FEDERAL JUDGE. 1 THINK IT IS A FAIR C O N C L U S I O N FROM
THESE S T A T I S T I C S THAT JUDGE BORK'S JUDICIAL RULINGS DURING T H E SE
FIVE YEARS HAVE NOT BEEN AT V A R I A N C E WITH THE PREVAILING VIEWS
OF THE CURRENT SUPREME COURT.
FKANKLY, 1 FIND IT P E R S O N A L L Y DIFFICULT TO R E C O N C I L E SOME OF
THE C H A R G E S THAT HAVE BEEN L E V E L E D A G A I N S T JUDGE BORK WITH H I S
RECORD SINCE B E C O M I N G AN A P P E L L A T E FEDERAL JUDGE. H L S JUDICIAL
PHILOSOPHY -" IN P R A C T I C E AS W E L L AS IN T H E O R Y IS FULLY
CONSISTENT WITH TRADITIONAL AMERICAN LEGAL THOUGHT. FOR KOBERT
B O R K , THE ROLE OF THE J U D G E IS TO A P P L Y THE INTENT OF THE
LEGISLATURE TO A LEGAL FACT SITUATION. FOLLOWING THE P R E S I D E N T ' S
NOMINATION OF JUDGE BORK TO T H E S U P R E M E COURT, 1 REVIEWED A
NUMBER OF H I S O P I N I O N S IN T H E D I S T R I C T OF C O L U M B I A CIRCUIT COURT
WITH PARTICULAR E M P H A S I S ON T H E F L R S T A M E N D M E N T AND C I V I L RIGHTS
CASES. THOS E C A S E S D E M O N S T R A T E THAT, IN A P P L I C A T I O N , THE RESULT
OF JUDGE BORK'S PHILOSOPHY CAN O F T E N BE C I V I L L I B E R T A R I A N IN
NATURE. THEY C E R T A I N L Y D O N O T D I S C L O S E A V I E W THAT OUR C O N S T I T U -
TION SHOULD BE OTHER THAN CONTEMPORARY AND WORKABLE IN OUR
MODERN SOCIETY. SEE: PLANNED PARENTHOOD FEDERATION OF AMERICA
v. HECKLER, 712 F.2D b50, b65-6b8 (1983); LEBRON V. WASHINGTON
METROPOLITAN AREA TRANSIT AUTHORITY, 749 F.2D 893 (1984); QUINCY
CABLE TV, INC. V. FEDERAL COMMUNICATIONS COMMISSION, 768 F.2u
1434 (1985); COUNTY COUNCIL OF SUMTER COUNTY, SOUTH CAROLINA V.
UNITED STATES, 596 F.SUPP. 35 (1984); AND EMORY V. SECRETARY OF
NAVY, 819 F. 2D 291 (1987).

27
FROM HIS PERSPECTIVE, A JUDGE MAY NOT INSERT HIS OWN
PERSONAL PREFERENCES OR POLITICAL PHILOSOPHY INTO A CASE. THE
MEDIA CALLS IT EXERCISING "JUDICIAL RESTRAINT" " BUT JUDGE BORK
STATES IT MORE CLEARLY AS THE INTELLECTUAL REJECTION OF "JUDICIAL
IMPERIALISM". THAT IS THE TERM HE APPLIES TO JUDGES WHO WOULD
SUBSTITUTE THEIR PRIVATE PERSONAL PHILOSOPHY OR PRIVATE POLITICAL
VIEWS FOR THAT OF THE LEGISLATORS WHO ACTUALLY WROTE THE LAWS.
HE RECOGNIZES THAT JUDGES ARE NOT ELECTED AND THAT UNDER OUR
SYSTEM OF GOVERNMENT, IT IS THE ELECTED REPRESENTATIVES THAT
WRITE AND AMEND THE LAWS.
HE ASKS THE FOLLOWING KINDS OF QUESTIONS: WHAT DOES THE
STATUTE SAY? DOES THE STATUTE PERMIT A GOVERNMENT AGENCY, A
PRIVATE ORGANIZATION, OR AN INDIVIDUAL TO ACT IN A PARTICULAR
MANNER? UO THE REGULATIONS ISSUED BY THE AGENCY REFLECT THE
STATUTORY AUTHORITY GIVEN TO THAT AGENCY? DOES THE LANGUAGE OF
THE CONSTITUTION ALLOW THE OUTCOME SOUGHT BY THE LITIGANT IN THIS
PARTICULAR CASE? THESE, TO M E , DO NOT SOUND LIKE THE QUESTIONS
OF SOMEONE OUTSIDE THE REALM OF TRADITIONAL AMERICAN LEGAL
THOUGHT. MORE SPECIFICALLY, THEY SOUND EXACTLY LIKE THE TYPES OF
QUESTIONS THAT A JUDGE OUGHT TO ASK.
1 HAVE EVERY CONFIDENCE THAT THESE PROCEEDINGS WILL ALLOW
THE DISTINGUISHED MEMBERS OF THIS COMMITTEE TO PROBE AND ANALYZE
THE REMARKABLE QUALIFICATIONS OF THIS OUTSTANDING LAWYER AND
JUDGE. KOBERT TJORK DESERVES TO BE J.UD6ED FOR THE LAWYER HE
ACTUALLY IS AND ON THE BASIS OF HOW HE HAS ACTUALLY RENDERED
JUDICIAL DECISIONS. THESE HEARINGS AFFORD AN OPPORTUNITY TO

28
b
ELICIT HIS VIEWS DIRECTLY RATHER TO LEAVE THE RECORD TO THEORETI-
CAL SPECULATION.
THIS MAN IS QUALIFIED TO BE AN ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES ON THE BASIS OF VIRTUALLY
EVERY LOGICAL CRITERION. HE WAS AN EXCELLENT COURTROOM LAWYER,
IS A WIDELY RECOGNIZED SCHOLAR, AND HAS HAD AN EXCEPTIONAL RECORD
AS AN APPELLATE JURIST. 1 URGE THIS COMMITTEE, AS I KNOW THAT IT
WILL, TO JUDGE THIS MAN FAIRLY AND TO REVIEW ALL THE FACTS IN
THIS CASE BEFORE A FINAL JUDGMENT IS RENDERED.

29
The CHAIRMAN. Thank you very much, Congressman.
Before I yield to the distinguished ranking member of this com-
mittee, I suggest you all are welcome to stay and listen to us all.
Once again, showing your good judgment.
Thank you, Congressman.
I have two housekeeping matters before we move on. I have been
informed that there will be a vote at 11 o'clock. What we will do is
we will not recess in the middle of a Senator's statement. We may,
prior to the next statement being given, recess to go over and then
come back so that we are not interrupting statements.
I yield to my colleagues, and apologize. I should have probably
yielded to you earlier, Senator. You had welcoming remarks, and I
apologize. So please take what time you need. Senator Thurmond.
OPENING STATEMENT OF SENATOR STROM THURMOND
Senator THURMOND. Thank you very much, Mr. Chairman.
Mr. Chairman, I have had the pleasure of serving with you on
this committee, with me as chairman and you as ranking member.
I have always found you to be fair, courteous and considerate, and
I am sure that is the way this hearing will be held.
Judge Bork, I would like to welcome you and your family here
today. I think it particularly fitting that the Senate in performing
its constitutional duty is considering your nomination to be an As-
sociate Justice of the Supreme Court at the time we are celebrating
the 200th anniversary of the Constitution of the United States.
Today, the committee begins consideration of this important
nomination of Judge Robert H. Bork to be an Associate Justice of
the Supreme Court. This is the fourth Supreme Court nomination
that this committee has considered in the past 6 years. In fact, I
might say that it is the 20th such nomination that I have had the
opportunity to review during my 33 years in the Senate. On earlier
occasions, I have set forth the qualities I believe a nominee to the
Court should possess:
First, unquestioned integrity; the courage to render decisions in
accordance with the Constitution and the will of the people as ex-
pressed in the laws of Congress;
A keen knowledge and understanding of the law; in other words,
professional competency;
Compassion, which recognizes both the rights of the individual
and the rights of society in the quest for equal justice under law;
Proper judicial temperament; the ability to prevent the pressures
of the moment from overpowering the composure and self-disci-
pline of a well-ordered mind;
An understanding of and appreciation for the majesty of our
system of governmentin its separation of powers between the
branches of our federal government; its division of powers between
the federal and State governments; and the reservation to the
States and to the people of all powers not delegated to the federal
government.
There is no doubt that the nominee before us today meets these
qualifications. His intellectual credentials are impeccable: Phi Beta
Kappa, distinguished professor of law at Yale Law School; and re-
spected author. His experience is extraordinary: in academia, as a
30
general practitioner, as Solicitor General, and as a judge for the

U.S. Court of Appeals for the D.C. Circuit, felt by many to be the
second most important court in this country. Judge Bork has a
long-standing reputation for integrity and judicial temperament.
On two occasions, Judge Bork has had his professional qualifica-
tions and personal character specifically examined and carefully
scrutinized by the American Bar Association. On both occasions,
the ABA has given Judge Bork the highest possible rating for his
professional competence, integrity, and temperament.
Judge Bork is not a new or unknown quantity. He has been
before this committee twice previously, and both times the commit-
tee and the full Senate have deemed him worthy of confirmation:
to be Solicitor General and to be a judge of the U.S. Court of Ap-
peals for the D.C. Circuit. It is also worthy of note that both times
Judge Bork was confirmed by the full Senateonce when Demo-
crats controlled the Senate and once when Republicans didthere
was not a single dissenting vote.
In fact, if we were to put aside questions of philosophy and ideol-
ogy, Judge Bork would in all likelihood already be sitting on the
Court. However, it is apparent that some would have the issue of
philosophy become the standard for whether or not we confirm this
nominee for the Supreme Court. This nomination has been delayed
longer, by any standard, than any other Supreme Court nomina-
tion in the last 25 years, while opponents mount an ideological
campaign against him. Because so much has been said about the
question of philosophy and ideology, I believe we should examine
that issue within the context of the nominating process.
Some have said that philosophy should not be considered at all
in the confirmation process. In fact, I have been incorrectly aligned
with that position. Others say that philosophy should be the sole
criteria. I reject both of these positions. I believe that a candidate's
philosophy may properly be considered, but philosophy should not
be the sole criteria for rejecting a nominee with one notable excep-
tion. The one exception is when the nominee clearly does not sup-
port the basic, long-standing consensus principles of our nation.
I want to be very clear about this point: I do not believe that phi-
losophy alone should bar a nominee from the Court unless that
nominee holds a belief that is so contrary to the fundamental, long-
standing principles of this country that the nominee's service
would be inconsistent with the very essence of this country's
shared values.
Such a nominee's position should be unequivocal and in violation
of a basic belief. For example, freedom of speech is a fundamental,
accepted principle in this country; but exactly what constitutes
"speech" and whether or not there are limitations on any particu-
lar activity, are issues on which reasonable people can disagree.
Freedom of religion is an accepted tenet of this country; but wheth-
er freedom of religion means that a person in the military can
wear religious garb rather than his uniform is a matter that can
be, and is, openly debated. That there should be no government-es-
tablished religion in America is a fundamental principle; but
whether that proscribed prayer in our schools is a matter of accept-
ed public debate and commentary. That discrimination based on
race or national origin is unacceptable is a basic tenet of this
31
nation; but there certainly is no such agreement on the use of pref-
erential quotas.
I raise these examples not to launch into a substantive debate on
any of these issues, but merely to point out that we should not con-
fuse core, fundamental principles with evolving and debatable ap-
plications of those principles.
In applying this standard, which could lead to automatic rejec-
tion of a nominee, we must be reasonable. We must apply it in a
manner which also protects the basic American interest of free and
open debate on important issues. As the courts, and all Americans,
grappled with new applications of our principles and new doctrines
are created and offered, these evolving decisions are not sacrosanct
and above criticism. In fact, debate and discussion of these new
ideas is not only welcomed, it is essential. This is a stringent stand-
ard, but in my tenure in the Senate, this test has never been used
to disqualify a nominee because no President has ever sent such a
nominee to the Senate. To apply a broader philosophical litmus
test would put a nominee in jeopardy of being labeled "un-Ameri-
can" or "unfit" if he has ever been in a minority position on any
issue.
It has been said that since the President uses philosophy to pick
a nominee, the Senate can use philosophy in evaluating a nominee.
A corollary statement should be just as true. When the President
does not solely use philosophy to choose his nominee, the Senate
should not solely use philosophy to reject that nominee. Historical-
ly, Presidents do consider philosophy when appointing nominees to
the Supreme Court. That is part of our system of government; it is
the manner in which the American people have an opportunity to
influence the Court. But this President was re-elected overwhelm-
ingly when the issue of such appointments was a major, well-dis-
cussed campaign issue.
Because this process is well understood by the American people,
any nominee selected by a President comes to the Senate with a
presumption in his favor. Accordingly, opponents of the nominee
must make the case against him. That is why opponents of Judge
Bork are trying to fit him into some accepted basis for disqualifica-
tion or create a new one to defeat him.
First, Judge Bork's opponents will try to raise questions about
his character and integrity. Failing this, they will assert that he is
disqualified by virtue of his philosophy, by labeling him as an ex-
tremist or "outside the mainstream." This, in essence, refers to the
purely philosophical test which I have discussed. A review of Judge
Bork's record indicates that he, indeed, is well within the main-
stream of legal debate and discussion in this country. His record on
appeals is perhaps the best in the country.
However, even if a nominee occasionally dissents from a majority
view, that should not disqualify him. Although Judge Bork has
been in the accepted majority position almost without fail, there is
a grand tradition of legal dissent in this country. As Justice Felix
Frankfurter said, "In this Court, dissents have gradually become
majority opinions." There certainly is nothing wrong with writing
a dissent at any judicial level if it is called for; in fact, integrity
demands it.
32
Opponents of this nominee have also surfaced a new theory of

"balance" on the Court; that somehow there is a mandated immu-
table balance on the Court. This theory has an inherent problem:
When did the Court reach the perfect balance? Was it in the
Warren Court, or the courts which preceded the Warren Court and
which were so greatly overturned by the Warren Court?
Further, does anyone really believe that these proponents of a
"balance theory" would oppose a liberal nominee solely because he
had been named to replace a conservative Justice? Of course not.
More fundamentally, such a theory presupposes that the Supreme
Court is infallible, when clearly it is not. Do we really want to en-
shrine, for all time, every decision the Court makes? History gives
us many examples of the Supreme Court overruling itself and cor-
recting its own errors. Usually, those who argue "balance" have
certain decisions they do not want reconsidered under any circum-
stances. On the other hand, I believe the Court should be allowed
to correct errors it has made.
Finally, there is one other issue that should be addressed. I be-
lieve, as I have stated before, that the full Senate should make the
final determination on all nominations. The confirmation process
should not stop at the committee level. The Constitution requires
the advice and consent of the Senate, not simply the opinion of any
one committee. I am pleased that both Chairman Biden and the
distinguished majority leader, among others, have indicated that
they agree that this nomination should be dealt with by the full
Senate.
Judge Bork, welcome again to the committee, and we look for-
ward to your testimony.
Before we begin with Senator Kennedy's opening statement, we
will have a vote in the middle of it. I would appreciate it if we not
adjourn until the statement is made, and then we will adjourn, all
of us at once, and come back afterwards.
Senator Kennedy.
OPENING STATEMENT OF SENATOR EDWARD M. KENNEDY
Senator KENNEDY. Good morning, Judge Bork.
From the beginning, America has set the highest standards for
our highest Court. We insist that a nominee should have outstand-
ing ability and integrity. But we also insist on even more: that
those who sit on the Supreme Court must deserve the special title
we reserve for only nine federal judges in the entire country, the
title that sums up in one word the awesome responsibility on their
shouldersthe title of "Justice."
Historically, America has set this high standard because the Jus-
tices of the Supreme Court have a unique obligation: to serve as
the ultimate guardians of the Constitution, the rule of law, and the
liberty and the quality of every citizen. To fulfill these responsibil-
ities, to earn the title of "Justice," a person must have special
qualities:
A commitment to individual liberty as the cornerstone of Ameri-
can democracy.
33
A dedication to equality for all Americans, especially those who
have been denied their full measure of freedom, such as women
and minorities.
A respect for justice for all whose rights are too readily abused
by powerful institutions, whether by the power of government or
by giant concentrations of power in the private sector.
A Supreme Court Justice must also have respect for the Supreme
Court itself, for our constitutional system of government, and for
the history and heritage by which that system has evolved, includ-
ing the relationship between the federal government and the
States, and between Congress and the President.
Indeed, it has been said that the Supreme Court is the umpire of
the federal system because it has the last word about justice in
America. Above all, therefore, a Supreme Court nominee must pos-
sess the special quality that enables a justice to render justice. This
is the attribute whose presence we describe by the words such as
fairness, impartiality, open-mindedness, and judicial temperament,
and whose absence we call prejudice or bias.
These are the standards by which the Senate must evaluate any
judicial nominee. And by these standards, Robert Bork falls short
of what Americans demand of a man or woman as a Justice on the
Supreme Court. Time and again, in his public record over more
than a quarter of a century, Robert Bork has shown that he is hos-
tile to the rule of law and the role of the courts in protecting indi-
vidual liberty.
He has harshly opposedand is publicly itching to overrule
many of the great decisions of the Supreme Court that seek to ful-
fill the promise of justice for all Americans.
He is instinctively biased against the claims of the average citi-
zen and in favor of concentrations of power, whether that is gov-
ernmental or private.
And in conflicts between the legislative and executive branches
of government, he has repeatedly expressed a clear contempt for
Congress and an unbridled trust in the power of the President.
Mr. Bork has said many extreme things in his comments of a
lifetime in the law. We already have a more extensive record of his
work and writings than perhaps we have had for any other Su-
preme Court nominee in history.
It is easy to conclude from the public record of Mr. Bork's pub-
lished views that he believes women and blacks are second-class
citizens under the Constitution. He even believes that, in the rela-
tion to the executive, Members of Congress are second-class citi-
zens, yet he is asking the Senate to confirm him.
The strongest case against this nomination is made by the words
of Mr. Bork himself. In an article he wrote in 1963, during the
battle to desegregate lunch counters, motels, hotels, and other
public accommodations in America, he referred to the civil rights
principle underlying that historic struggle as a principle of unsur-
passed ugliness.
Ten years later, he recanted his opposition, but in the time since
then he has consistently demonstrated his hostility towards equal
justice for all.
As recently as June of this year, he ridiculed a Supreme Court
decision prohibiting sex discrimination and suggested that the ex-
34
tension of the equal protection clause to women trivializes the Con-

stitution.
In Robert Bork's America, there is no room at the inn for blacks
and no place in the Constitution for women, and in our America
there should be no seat on the Supreme Court for Robert Bork.
Mr. Bork has been equally extreme in his opposition to the right
to privacy. In an article in 1971, he said, in effect, that a husband
and wife have no greater right to privacy under the Constitution
than a smokestack has to pollute the air.
President Reagan has said that this controversy is pure politics,
but that is not the case. I and others who oppose Mr. Bork have
often supported nominees to the Supreme Court by Republican
Presidents, including many with whose philosophy we disagree. I
voted for the confirmation of Chief Justice Burger and also Justices
Blackmun, Powell, Stevens, O'Connor and Scalia. But Mr. Bork is a
nominee of a different stripe. President Reagan has every right to
take Mr. Bork's reactionary ideology into account in making the
nomination, and the Senate has every right to take that ideology
into account in acting on the nomination.
Now, Mr. Bork's supporters are understandably seeking to
change his spots and deflect attention from the public record of his
controversial career. He will have ample opportunity in these hear-
ings to explain, or explain away, the extraordinarily extreme and
biased positions he has taken. But a switch at a convenient time
should not be sufficient to make Mr. Bork one of the nine.
Some observers are predicting a bitter battle over this nomina-
tion and have suggested that the struggle is reminiscent of the
great confrontations over civil rights and equal justice in the past.
But those confrontations were inevitable and irrepressible. All
Americans should realize that the confrontation over this nomina-
tion is the result of a deliberate decision by the Reagan administra-
tion. Rather than selecting a real judicial conservative to fill Jus-
tice Powell's vacancy, the President has sought to appoint an activ-
ist of the right whose agenda would turn us back to the battles of a
bitterly divided America, reopening issues long thought to be set-
tled and wounds long thought to be healed.
I for one am proud of the accomplishments of America in moving
towards the constitutional ideas of liberty and equality and justice
under law. I am also proud of the role of the Senate in ensuring
that Supreme Court nominees adhere to the tradition of fairness,
impartiality, and freedom from bias.
I believe the American people strongly reject the administra-
tion's invitation to roll back the clock and relive the more troubled
times of the past. I urge the committee and the Senate to reject the
nomination of Mr. Bork.
The CHAIRMAN. Thank you.
I would like to ask staff, is the vote still on for 11:00, because I do
not want Senator Hatch's statement to be interrupted.
It is scheduled for 11 o'clock. I ask Senator Hatch, would you
prefer, Senator, to begin and go until the end, or shall we go vote
and then come back and begin? What would you prefer?
Senator HATCH. Why do we not go vote.
The CHAIRMAN. If the vote is still on, the committee will recess
for 10 minutes or less, I hope. Please, I ask my colleagues, it is
35
going to be a long day. And by the way, immediately after adjourn-

ing the morning session, we will convene this committee in execu-
tive session to vote out the nomination of Judge Sessions.
We are recessed for 10 to 15 minutes.
[Recess.]
The CHAIRMAN. The hearing will come to order. We will now pro-
ceed with the opening statements.
Judge, thank you for your indulgence. Neither Senator Hatch
nor I are the majority or minority leader yet so we cannot control
the business of the floor. Obviously we will be interrupted on occa-
sion through this hearing but hopefully not too much.
I now invite Senator Hatch to make his opening statement.
OPENING STATEMENT OF SENATOR ORRIN G. HATCH
Senator HATCH. Thank you. I want to welcome you to the com-
mittee, Judge Bork, and I would just state that I think it is impor-
tant that potential Justices be treated with fairness too; not with
inflammatory mis-characterizations; not with distorted statistics;
not with misleading methodology leading up to these type of state-
ments and statistics, and certainly not with the selective use of evi-
dence, a lot of which I have seen by your critics in this particular
matter.
Mr. Chairman, I feel honored to welcome to the committee one of
the most qualified individuals ever nominated to serve on the
United States Supreme Court. His resumeoutstanding law stu-
dent, successful trial practitioner, leading law professor, esteemed
author and lecturer, excellent Solicitor General, and respected
judge on the District of Columbia Circuitspeaks for itself.
Nonetheless a few details might demonstrate the quality of his
life's work. He was not merely one of the top law students at the
University of Chicago, but he was the managing editor of the Law
Review, as has been stated. He was not merely one of the top law
professors for 15 years, but the holder of two endowed chairs. He
was not merely an excellent Solicitor General, but successfully rep-
resented the United States before the Supreme Court in hundreds
of cases during his 4-year tenure. He was not merely another ap-
pellate judge, but a judge who in at least 416 total cases was never
once reversed on appeal. Moreover, the Supreme Court six times
adopted his dissenting opinion when he had the courage to dissent
from the majority of his judicial colleagues.
Now, this is a jurist who, in the words of President Carter's legal
counsel, Lloyd Cutler, will be counted by history as belonging
alongside a few select justices, like Oliver Wendell Holmes, Louis
Brandeis, Felix Frankfurter, Potter Stewartwhose wife is with
you here today and whom I have a great deal of admiration and
respect for, of course, her husbandand Lewis Powell, as well.
You have been paid an even higher tribute than even that en-
dorsement, however, Judge Bork. That tribute is found in the wit-
ness list of those who have volunteered to testify in your behalf,
and I will just mention a few. That list includes, as we have seen, a
former President, a former Chief Justice, six former Attorney Gen-
erals of both parties, twelve top leaders of law enforcement officers,
seven law school deans, twelve leading law professors in this coun-
36
try, four top anti-trust lawyers, three bar leaders, several of your
former colleagues at the Department of Justice, and other influen-
tial lawyers and organizational heads. If an individual can be
judged by the company he keeps, then you are unrivaled.
In light of these remarkable credentials, it is hard to understand
why your nomination would generate controversy. The answer is
found in one word, which is tragic in this judicial context, and that
word is "politics." Judge Bork is experiencing the kind of innuendo
and intrigue that usually accompanies a campaign for the U.S.
Senate. Many Senators are experienced at running that kind of
campaign but it has no place in a judicial nominating proceeding.
Federal judges are not politicians and ought not to be judged like
politicians.
The great danger I see in the impending ideological inquisition is
injury to the independence and integrity of the Supreme Court and
the whole federal judiciary. When we undertake to judge a judge
according to political rather than legal criteria, we have stripped
the judicial office of all that makes it a distinct separated power. If
the general public begins to measure judges by a political yardstick
and if the judges themselves begin to base their decisions on politi-
cal criteria, we will have lost the reasoning processes of the law
which have served us so well to check political excesses and fervor
over the past 200 years. I would ask any American if they would
wish to have their life, liberty and property resting on the deci-
sions of judges who are more worried about what the newspaper
might say about the case than they are about life, liberty or prop-
erty.
Recognizing precisely this danger, the Senate has refused to
employ political litmus tests while confirming 53 justices over this
past century. Senate precedent does not support subjecting judicial
nominees to ideological inquisitions.
Moreover, the Constitution itself does not support that practice.
Based on the common sense observation that a diverse congression-
al body would have difficulty overcoming jealousies and politics to
select the best candidate, the framers in 1878200 years ago, just 2
days from nowunanimously voted to vest the nomination power
in the President. The Senate, however, was given a checking func-
tion. In the words of Alexander Hamilton, the advice and consent
function was to prevent "nepotism" and "unfit characters." The
advice and consent function is a checking function, not a license to
exert political influence on another branch, not a license to control
the outcome of future cases by overriding the President's preroga-
tives.
Despite the lessons of Senate precedent and the Constitution and
despite the political damage to the independence and integrity of
the judiciary, we are likely to witness a bruising political campaign
before your nomination comes to a final vote in the Senate. It is
not difficult to outline in advance the type of campaign it will be.
In the first place, you will be labelled. Even though political
litmus tests do not work well with judges, you will be branded an
extreme conservative. Of course, this will require some explanation
as to why you voted with your Carter-appointed colleague, Judge
Ruth Ginzburgwho is a great judge, by the wayin 90 percent of
the cases in which you both sat, or with your Carter-appointed col-
37
league, Judge Abner Mikva, in 83 percent of the cases in which you
both sat.
The next tactic will be to extract a few quotes from 15-year-old
articles while you were a law professor and ignore your judicial ac-
tions. For example, we have already heard allegations that you
might allow censorship of free speech. In fact, anyone who wants to
know your views on censorship would merely need to read your
Lebron decision where you held that the D.C. Metro authorities
violated Mr. Lebron's free speech rights by refusing to let him
hang a poster that was extremely critical of President Reagan. In
fact, those posters are going up today. You were even willing to
allow the embarrassment of the President who appointed you to
uphold his rights. In my mind, actions speak louder than words.
Another tactic will be to selectively use evidence. For instance,
we have already seen criticism that your Dronenburg decision
denied homosexuals a special constitutional protection. The evi-
dence that these critics consistently ignore is that the Supreme
Court reached precisely the same decision and the same result in
the Bowers v. Hardwick case.
Still another tactic, familiar to political campaigns is to accuse
you of ethical violations. In that vein, we have heard too much re-
cently about the so-called Saturday Night Massacre. In fact, this
was one of your finest hours. You were not the cause of Watergate
but you were part of the solution. As a precondition of carrying out
the President's order, you gained a commitment that the investiga-
tion would go forth without further interference. You had to make
a difficult decision on the spur of the moment. Even then you had
to be convinced by Attorney General Richardson not to resign, but
the evidence that your decision was correct is history. Because you
preserved the investigation, the President was later forced to
resign and several others were prosecuted. The performance that
you gave, it seems to me, deserves commendation, not criticism.
It will not end there. Inconsistent charges will be hurled at you.
For example, you will be called both an 'extremist" and "the one
vote likely to tip the balance." You cannot be both, unless those
making the charges are actually saying that four other justices are
already "extremists." Frankly, it is more likely that those making
the charge are the extremists themselves because the four other
justices, includes oneJustice Whiteappointed by President John
Kennedy, and twoScalia and O'Connorwho were unanimously
approved by the Senate. Unless they are also extremists, I do not
see how you can change anything there. Consistency, I think you
can conclude, will not be a hallmark of this debate.
We could discuss likely political tactics for a long time. The im-
portant thing to remember is that these political charges betray
themselves. As Hodding Carter, an official from the previous Demo-
cratic administration, candidly observed, quote: "The nomination of
Judge Bork forces liberals like me to confront a reality we don't
want to confront, which is that we are depending in large part on
the least democratic institution, with a small "d", in government to
defend what it is we no longer are able to win out there in the elec-
torate," unquote.
That is really what is involved here, and I think he was candid
and honest enough to state it in those succinct, candid terms.
38
This is the reason that politics are injected into this proceeding,
because many politicians are hoping to win from unelected judges
what they cannot win in the Congress or with the people of the
United States of America. My fear, however, is that the price of a
politicized judiciary is too high to pay in exchange for a short-term
policy set of gains. If judges fear to uphold the Constitution due to
political pressures or sense that their judicial careers might be ad-
vanced by reading that document in the smokey back rooms of po-
litical intrigue, then the Constitution will no longer be the solid
anchor holding our nation in place during the times of storm and
crisis. Instead, the Constitution will just become part of that politi-
cal storm, blowing hot and cold whenever the wind changes. That
is a price that we in this country cannot afford to pay, and I think
it is important that the American people understand that here.
I commend you for subjecting yourself to this situation and I
commend you for the work that you have done and for the respect
that you have from people who are truly learned in the law all
over this country and who set aside political gain.
Thank you for being here and thanks for accepting this nomina-
tion.
The CHAIRMAN. Thank you, Senator.
39
STATEMENT OF ORRIN 6. HATCH
MR. CHAIRMAN. AT THE OUTSET OF THESE HEARINGS, I WAS GOING

TO GIVE JUDGE BORK ONE SUGGESTION ON STYLE, NAMELY, BE CAREFUL NOT
TO APPEAR SMARTER THAN THE SENATORS ON THE COMMITTEE. BUT, ON
SECOND THOUGHT, THAT MIGHT PLACE SEVERE RESTRICTIONS ON HIM FROM
THE VERY START.
IN ALL SERIOUSNESS, MR. CHAIRMAN, I FEEL HONORED TO WELCOME

TO THE COMMITTEE ONE OF THE MOST QUALIFIED INDIVIDUALS EVER
NOMINATED TO SERVE ON THE SUPREME COURT. HLS RESUME
OUTSTANDING LAW STUDENT, SUCCESSFUL TRIAL PRACTITIONER, LEADING
LAW PROFESSOR, ESTEEMED AUTHOR AND LECTURER, EXCELLENT SOLICITOR
GENERAL, AND RESPECTED JUDGE ON THE DISTRICT OF COLUMBIA CIRCUIT
SPEAKS FOR ITSELF. NONETHELESS A FEW DETAILS MIGHT DEMONSTRATE
THE QUALITY OF HIS LIFE'S WORK. HE WAS NOT MERELY ONE OF THE TOP
LAW STUDENTS AT THE UNIVERSITY OF CHICAGO, BUT THE MANAGING EDITOR
OF THE LAW REVIEW. HE WAS NOT MERELY A TOP LAW PROFESSOR FOR 15
YEARS, BUT THE HOLDER OF TWO ENDOWED CHAIRS. HE WAS NOT MERELY AN
EXCELLENT SOLICITOR GENERAL, BUT SUCCESSFULLY REPRESENTED THE
UNITED STATES BEFORE THE SUPREME COURT IN HUNDREDS OF CASES DURING
HIS FOUR-YEAR TENURE. HE WAS NOT MERELY ANOTHER APPELLATE JUDGE,
BUT A JUDGE WHO IN ^16 TOTAL CASES WAS NEVER ONCE REVERSED ON
APPEAL. MOREOVER, THE SUPREME COURT SIX TIMES ADOPTED HIS
POSITION WHEN HE HAD THE COURAGE TO DISSENT FROM THE MAJORITY OF
HIS JUDICIAL COLLEAGUES. THIS IS A JURIST WHO, IN THE WORDS OF
PRESIDENT CARTER'S COUNSEL, LLOYD CUTLER, WILL BE COUNTED BY
HISTORY AS BELONGING ALONGSIDE A FEW SELECT JUSTICES, LIKE "OLIVER
WENDELL HOLMES, LOUIS BRANDEIS, FELIX FRANKFURTER, POTTER STEWART,
AND LEWIS F. POWELL, JR."
YOU HAVE BEEN PAID AN EVEN HIGHER TRIBUTE THAN EVEN THAT
ENDORSEMENT, HOWEVER, JUDGE BORK. THAT TRIBUTE IS FOUND IN THE
WITNESS LIST OF THOSE WHO HAVE VOLUNTEERED TO TESTIFY ON YOUR
BEHALF. THAT LIST INCLUDES A FORMER PRESIDENT, A FORMER CHIEF
JUSTICE, SIX FORMER ATTORNIES GENERAL OF BOTH PARTIES, TWELVE TOP
40
LEADERS OF LAW ENFORCEMENT OFFICERS/ SEVEN LAW SCHOOL DEANS,

TWELVE OF THE LEADING LAW PROFESSORS IN THE NATION/ FOUR TOP
ANTITRUST LAWYERS/ THREE BAR LEADERS, SEVERAL OF YOUR FORMER
COLLEAGUES AT THE DEPARTMENT OF JUSTICE, AND OTHER INFLUENTIAL
LAWYERS AND ORGANIZATION HEADS. IF AN INDIVIDUAL CAN BE JUDGED BY
THE COMPANY HE KEEPS, YOU ARE UNRIVALED.
IN LIGHT OF THESE REMARKABLE CREDENTIALS, IT IS HARD TO

UNDERSTAND WHY JUDGE BORK'S NOMINATION WOULD GENERATE CONTROVERSY.
THE ANSWER IS FOUND IN ONE WORD, WHICH IS TRAGIC IN THIS JUDICIAL
CONTEXT, AND THAT WORD IS "POLITICS." JUDGE BORK IS EXPERIENCING
THE KIND OF INNUENDO AND INTRIGUE THAT USUALLY ACCOMPANIES A
CAMPAIGN FOR THE SENATE. MANY SENATORS ARE EXPERIENCED AT RUNNING
THAT KIND OF CAMPAIGN/ BUT IT HAS NO PLACE IN A JUDICIAL
NOMINATION PROCEEDING. FEDERAL JUDGES ARE NOT POLITICIANS AND
OUGHT NOT TO BE JUDGED LIKE POLITICIANS.
THE GREAT DANGER I SEE IN THE IMPENDING IDEOLOGICAL

INQUISITION IS INJURY TO THE INDEPENDENCE AND INTEGRITY OF THE
FEDERAL JUDICIARY. WHEN WE UNDERTAKE TO JUDGE A JUDGE ACCORDING
TO POLITICAL, RATHER THAN LEGAL CRITERIA, WE HAVE STRIPPED THE
JUDICIAL OFFICE OF ALL THAT MAKES IT A DISTINCT SEPARATED POWER.
IF THE GENERAL PUBLIC BEGINS TO MEASURE JUDGES BY A POLITICAL
YARDSTICK AND IF THE JUDGES THEMSELVES BEGIN TO BASE THEIR
DECISIONS ON POLITICAL CRITERIA, WE WILL HAVE LOST THE REASONING
PROCESSES OF THE LAW WHICH HAVE SERVED SO WELL TO CHECK POLITICAL
FERVOR OVER THE PAST TWO HUNDRED YEARS. I WOULD ASK ANY AMERICAN
IF THEY WOULD WISH TO HAVE THEIR LIFE, LIBERTY, AND PROPERTY
RESTING ON THE DECISION OF JUDGES WHO ARE MORE WORRIED ABOUT WHAT
THE NEWSPAPER MIGHT SAY ABOUT THE CASE THAN THEY ARE ABOUT THE
LIFE, LIBERTY OR PROPERTY.
RECOGNIZING PRECISELY THIS DANGER, THE SENATE HAS REFUSED TO

EMPLOY POLITICAL LITMUS TESTS WHILE CONFIRMING 53 JUSTICES OVER
THE PAST CENTURY. SENATE PRECEDENT DOES NOT SUPPORT SUBJECTING
JUDICIAL NOMINEES TO IDEOLOGICAL INQUISITIONS.
41
MOREOVER THE CONSTITUTION ITSELF DOES NOT SUPPORT THAT

PRACTICE. BASED ON THE COMMON SENSE OBSERVATION THAT A DIVERSE
CONGRESSIONAL BODY WOULD HAVE DIFFICULTY OVERCOMING JEALOUSIES AND
POLITICS TO SELECT THE BEST CANDIDATE, THE FRAMERS IN 1787
UNANIMOUSLY VOTED TO VEST THE NOMINATION POWER IN THE PRESIDENT.
THE SENATE/ HOWEVER, WAS GIVEN A CHECKING FUNCTION. IN THE WORDS
OF ALEXANDER HAMILTON, THE ADVICE AND CONSENT FUNCTION WAS TO
PREVENT "NEPOTISM" AND "UNFIT CHARACTERS." THE ADVICE AND CONSENT
FUNCTION IS A CHECKING FUNCTION, NOT A LICENSE TO EXERT POLITICAL
INFLUENCE ON ANOTHER BRANCH, NOT A LICENSE TO CONTROL THE OUTCOME
OF FUTURE CASES BY OVERRIDING THE PRESIDENT'S PREROGATIVES.
DESPITE THE LESSONS OF SENATE PRECEDENT AND THE CONSTITUTION

AND DESPITE THE POTENTIAL DAMAGE TO THE INDEPENDENCE AND INTEGRITY
OF THE JUDICIARY, WE ARE LIKELY TO WITNESS A BRUISING POLITICAL
CAMPAIGN BEFORE YOUR NOMINATION COMES TO A FINAL VOTE IN THE
SENATE. IT IS NOT DIFFICULT TO OUTLINE IN ADVANCE THE TYPE OF
CAMPAIGN IT WILL BE.
IN THE FIRST PLACE, YOU WILL BE LABELLED. EVEN THOUGH

POLITICAL LITMUS TESTS DO NOT WORK WELL WITH JUDGES, YOU WILL BE
BRANDED AN "EXTREME CONSERVATIVE." OF COURSE, THIS WILL REQUIRE
SOME EXPLANATION AS TO WHY YOU VOTED WITH YOUR CARTER-APPOINTED
COLLEAGUE, JUDGE RUTH GLNZBURG, IN 90% OF THE CASES ON WHICH YOU
BOTH SAT, OR WITH YOUR CARTER-APPOINTED COLLEAGUE, JUDGE ABNER
MLKVA, IN 83% OF THE CASES ON WHICH YOU BOTH SAT.
THE NEXT TACTIC WILL BE TO EXTRACT A FEW QUOTES FROM

15-YEAR-OLD ARTICLES AND IGNORE YOUR JUDICIAL ACTIONS. FOR
EXAMPLE, WE HAVE ALREADY HEARD ALLEGATIONS THAT YOU MIGHT ALLOW
CENSORSHIP OF FREE SPEECH. IN FACT, ANYONE WHO WANTS TO KNOW
YOUR VIEWS ON CENSORSHIP WOULD MERELY NEED TO READ YOUR LERRQJI
DECISION WHERE YOU HELD THAT THE D.C. METRO AUTHORITIES VIOLATED
MR. LEBRON'S FREE SPEECH RIGHTS BY REFUSING TO LET HIM HANG A
POSTER THAT WAS EXTREMELY CRITICAL OF PRESIDENT REAGAN. YOU WERE
EVEN WILLING TO ALLOW THE EMBARRASSMENT OF THE PRESIDENT WHO
42
APPOINTED YOU TO UPHOLD MR. LEBRON'S RIGHTS. IN MY MIND/ ACTIONS

SPEAK LOUDER THAN WORDS.
ANOTHER TACTIC WILL BE TO SELECTIVELY USE EVIDENCE. FOR

INSTANCE/ WE HAVE ALREADY SEEN CRITICISMS THAT YOUR DRONENBURG
DECISION DENIED HOMOSEXUALS A SPECIAL CONSTITUTIONAL PROTECTION.
THE EVIDENCE THAT THESE CRITICS CONSISTENTLY IGNORE IS THAT THE
SUPREME COURT REACHED PRECISELY THE SAME RESULT IN THE BOWERS V.
STILL ANOTHER TACTIC, FAMILIAR TO POLITICAL CAMPAIGNS, IS TO

ACCUSE YOU OF ETHICAL VIOLATIONS. IN THAT VEIN, WE HAVE HEARD TOO
OFTEN RECENTLY ABOUT THE SATURDAY MIGHT MASSACRE. IN FACT, THIS
WAS ONE OF YOUR FINEST HOURS. YOU WERE NOT THE CAUSE OF
WATERGATE, BUT YOU WERE PART OF THE SOLUTION. AS A PRECONDITION
OF CARRYING OUT THE PRESIDENT'S ORDER, YOU GAINED A COMMITMENT
THAT THE INVESTIGATION WOULD GO FORTH WITHOUT FURTHER
INTERFERENCE. YOU HAD TO MAKE A DIFFICULT DECISION ON THE SPUR OF
THE MOMENT. EVEN THEN YOU HAD TO BE CONVINCED BY ATTORNEY GENERAL
RICHARDSON NOT TO RESIGN, BUT THE EVIDENCE THAT YOUR DECISION WAS
CORRECT IS HISTORY. BECAUSE YOU PRESERVED THE INVESTIGATION, THE
PRESIDENT WAS LATER FORCED TO RESIGN AND SEVERAL OTHERS WERE
PROSECUTED. THIS PERFORMANCE DESERVES COMMENDATION, NOT
CRITICISM.
IT WILL NOT END THERE. INCONSISTENT CHARGES WILL BE HURLED

AT YOU. FOR EXAMPLE, YOU WILL BE CALLED BOTH AN "EXTEMIST" AND
"THE ONE VOTE LIKELY TO TIP THE BALANCE." YOU CANNOT BE BOTH,
UNLESS THOSE MAKING THE CHARGE ARE ACTUALLY SAYING THAT FOUR OTHER
JUSTICES ARE ALREADY "EXTREMISTS." FRANKLY, IT IS MORE LIKELY
THAT THOSE MAKING THE CHARGE ARE THE EXTREMISTS BECAUSE THE FOUR
OTHER JUSTICES INCLUDE ONE (WHITE) APPOINTED BY PRESIDENT JOHN
KENNEDY AND TWO (SCALIA AND O'CONNOR) WHO WERE UNANIMOUSLY
APPROVED BY THE SENATE. CONSISTENCY WILL NOT BE A HALLMARK OF
THIS DEBATE.
43
WE COULD DISCUSS LIKELY POLITICAL TACTICS FOR A LONG TIME.

THE IMPORTANT THING TO REMEMBER IS THAT THESE POLITICAL CHARGES
BETRAY THEMSELVES. AS HODDING CARTER, AN OFFICIAL FROM THE
PREVIOUS DEMOCRATIC ADMINISTRATION, CANDIDLY OBSERVED:
"[THE NOMINATION OF JUDGE BORK] FORCES LIBERALS LIKE ME TO

CONFRONT A REALITY WE DON'T WANT TO CONFRONT, WHICH IS THAT WE ARE
DEPENDING IN LARGE PART ON THE LEAST DEMOCRATIC INSTITUTION, WITH
A SMALL "D," IN GOVERNMENT TO DEFEND WHAT IT IS WE NO LONGER ARE
ABLE TO WIN OUT THERE IN THERE IN THE ELECTORATE."
THIS IS THE REASON THAT POLITICS ARE INJECTED INTO THIS PROCEEDING
BECAUSE MANY POLITICIANS HOPE TO WIN FROM UNELECTED JUDGES WHAT
THEY CANNOT WIN IN CONGRESS OR WITH THE PEOPLE OF AMERICA.
I^Y FEAR, HOWEVER, IS THAT THE PRICE OF A POLITICIZED

JUDICIARY IS TOO HIGH TO PAY IN EXCHANGE FOR ANY SHORT-TERM POLICY
GAINS. IF JUDGES FEAR TO UPHOLD THE CONSTITUTION DUE TO POLITICAL
PRESSURES OR SENSE THAT THEIR JUDICIAL CAREERS MIGHT BE ADVANCED
BY READING THAT DOCUMENT IN THE SMOKEY BACKROOMS OF POLITICAL
INTRIGUE, THEN THE CONSTITUTION WILL NO LONGER BE A SOLID ANCHOR
HOLDING OUR NATION IN PLACE DURING TIMES OF STORM AND CRISIS.
INSTEAD THE CONSTITUTION WILL JUST BECOME PART OF THE POLITICAL
STORM BLOWING HOT AND COLD WHENEVER THE WIND CHANGES. THAT IS
A PRICE WE CANNOT AFFORD TO PAY.
44
The CHAIRMAN. Senator Metzenbaum.
OPENING STATEMENT OF SENATOR HOWARD M. METZENBAUM
Senator METZENBAUM. Judge Bork, I am happy to join my col-
leagues in welcoming you this morning.
My vote, Judge Bork, on this nomination will be one of the most
important I cast as a U.S. Senator. The passions generated by this
nomination on both sides reflect the enormous significance it has
for every American, yes for our children, for our grandchildren,
and maybe even our great grandchildren.
One of the threshold questions we face in this confirmation proc-
ess is the respective roles of the President and the Senate. Presi-
dent Reagan and his Attorney General have made it a major prior-
ity to change basic constitutional principles. The President has pro-
posed a series of constitutional amendments, none of which has
made any progress toward enactment. His Attorney General has
attempted to persuade the Supreme Court to reinterpret the Bill of
Rights. Fortunately, he too has been unsuccessful.
Now it is clear that the President wants to revise the Constitu-
tion through his appointments to the Supreme Court. No one
would question the President's right to attempt to amend the Con-
stitution, but in the Senate we have every rightyes, we have a
dutyto challenge his attempt to amend it by the back door. If the
President attempts to change constitutional interpretation through
appointments to the Supreme Court, the Senate cannot stand by
and passively acquiesce.
As the distinguished ranking member of this committee, Senator
Thurmond, and the President's Chief of Staff, Howard Baker, have
both said, the Senate has a constitutional obligation to consider the
views of a nominee. This is especially our obligation when the
President has selected a nominee by reason of those views. More-
over, the confirmation of this nominee is likely to tip the Court
radically on key constitutional issues.
Justice Powell was a conservative justice who followed a prag-
matic and careful approach. His mind was not closed. He had great
respect for precedent. He did not have a rigid view of the bound-
aries of constitutional protections. Upon his retirement he said: "I
never think of myself as having a judicial philosophy. I try to be
careful to do justice to the particular case rather than try to write
principles."
Those who know Robert Bork know he is not Lewis Powell, nor I
suspect, would he claim to be. Judge Bork categorically rejects any
constitutional right of privacy. He believes the Government has the
right to regulate the family life and the sex life of every American.
He believes the Government can make it a crime for married
adults to use birth control. He has an extremely narrow view of
free speech. He does not believe the equal protection clause applies
to women. He opposes the constitutional principle of one-man, one-
vote. He would have upheld a poll tax on the constitutional right to
vote. He would have upheld a law allowing the forced sterilization
of convicts.
Judge Bork criticizes judges who make law, yet in interpreting
certain statutes, he appears eager to do just that. He would radical-
45
ly reinterpret the anti-trust laws in disregard of the intent of Con-
gress which he considersthat being the Congress, quote, "institu-
tionally incapable of fashioning a rational anti-trust policy," end of
quote.
He would allow giant companies to merge until only two or three
were left. He would eliminate the right of retailers to give consum-
ers a discount on the products they buy. He would ignore Congress'
concern about preserving small and independent businesses.
Judge Bork says he is neutral and even-handed in applying the
law. Yet, in split decisions involving disputes between the Govern-
ment and an individual, he has voted for the Government almost
100 percent of the time. When citizens have wanted access to the
courts, he has always voted against them. Yet, when a business is
challenging a regulatory agency of the Government, he has been
on the corporate side in virtually every case.
Another issue is Judge Bork's role in the Saturday Night Massa-
cre. A federal court found that his firing of Archibald Cox on Presi-
dent Nixon's orders was illegal, a rusein the court's wordsto
get around the law. Now new information has come to light which
suggests Judge Bork may not have been completely forthcoming re-
garding his role in this affair. It is important to explore these mat-
ters, for what message does it convey if the Senate confirms to the
highest court of the land someone who has violated the law.
Finally, where does the nominee really stand on the vital issues
that he would face on the Supreme Court. A recent article stated
that Judge Bork would now have us believe that his controversial
writings were the product of inexperience and youth, when he
tended to go, quote, "wild with ideas," end of quote. In fact, Judge
Bork was 36 when he wrote that requiring public establishments to
serve blacks is a matter of "unsurpassed ugliness." He was 44
when he wrote that the first amendment does not protect scientific
or literary speech. And he was 60 when he reiterated just a few
months ago his view that the Constitution does not protect our pri-
vacy.
I strongly encourage you, Judge Bork, to be straightforward and
clear with this committee. The record is voluminous. It would be a
disservice to you and the country to distort it. These considerations
lead me to be very troubled by this nomination. Judge Bork could
weaken, literally within a few years, fundamental constitutional
freedoms which the Supreme Court has protected throughout its
history.
The Senate's inquiry follows more than just a consideration of
Judge Bork's professional credentials. In the end each Senator just
search his or conscience and ask, is the confirmation of Robert
Bork in the best interest of this country.
OPENING STATEMENT OF SENATOR HOWARD M. METZENBAUM
Welcome. My vote on this nomination will be one of the most important I cast as
a U.S. Senator. The passions generated by this nominationon both sidesreflect
the enormous significance it has for every Americanfor our children and our
grandchildren.
One of the threshold questions we face in this confirmation process is the respec-
tive roles of the President and the Senate. President Reagan and his Attorney Gen-
86-974 0 - 89 - A
46
eral have made it a major priority to change basic constitutional principles. The
President has proposed a series of constitutional amendments, none of which has
made any progress toward enactment. His Attorney General has attempted to per-
suade the Supreme Court to reinterpret the Bill of Rights. Fortunately, he too has
been unsuccessful.
Now it is clear that the President wants to revise the Constitution through his
appointments to the Supreme Court.
No one would question the President's right to attempt to amend the Constitu-
tion. But in the Senate we have every rightand dutyto challenge his attempt to
amend it by the back door. If the President attempts to change constitutional inter-
pretation through appointments to the Supreme Court, the Senate cannot stand by
and passively acquiesce.
As the distinguished ranking member of this committee and the President's Chief
of Staff have have both said, the Senate has a constitutional obligations to consider
the views of a nominee. This is especially our obligation when the President has
selected a nominee because of those views.
Moreover, the confirmation of this nominee is likely to tip the Court radically on
key constitutional issues. Justice Powell was a conservative Justice who followed a
pragmatic and careful approach. His mind was not closed. He had great respect for
precedent. He did not have a rigid view of the boundaries of constitutional protec-
tions. Upon his retirement, he said:
"I never think of myself as having a judicial philosophy * * * I try to be careful,
to do justice to the particular case, rather than try to write principles." Those who
know Robert Bork know he is not Lewis Powell, nor, I suspect, would he claim to be.
Judge Bork categorically rejects any constitutional right of privacy. He believes
the Government has a right to regulate the family lifeand the sex lifeof every
American. He believes the Government can make it a crime for married adults to
use birth control.
He has an extremely narrow view of free speech. He does not believe the equal
protection clause applies to women. He opposes the constitutional principle of one
man-one vote.
He would have upheld a poll tax on the constitutional right to vote. He would
have upheld a law allowing the forced sterilization of convicts.
Judge Bork criticizes judges who make law. Yet, in interpreting certain statutes.
He appears eager to do just that. He would radically reinterpret the antitrust laws
in disregard of the intent of Congress, which he considers "institutionally incapable
of * * * fashioning a rational antitrust policy." He would allow giant companies to
merge until only two or three were left. He would eliminate the right of retailers to
give consumers a discount. He would ignore Congress' concern about preserving
small and independent businesses.
Judge Bork says he is neutral and evenhanded in applying the law. Yet, in split
decisions involving disputes between the Government and an individual, he has
voted for the Government almost 100 percent of the time. When citizens have
wanted access to the courts, he has always voted against them. Yet, when a business
is challenging a regulatory agency of the Government, he has been on the corporate
side in virtually every case.
Another issue is Judge Bork's role in the Saturday night massacre. A federal
court found that his firing of Archibald Cox on President Nixon's orders was illegal,
a "ruse", in the Court's words, to get around the law. Now new information has
come to light which suggests Judge Bork may not have been completely forthcoming
regarding his role in this affair. It is important to explore these matters, for what
message does it convey if the Senate confirms to the highest Court of the land some-
one who has violated the law?
Finally, where does the nominee really stand on the vital issues that he would
face on the Supreme Court? A recent newspaper article stated that Judge Bork
would now have us believe that his controversial writings were the product of inex-
perience and youth, when he tended to go "wild with ideas." In fact, Judge Bork
was Thirty-Six (36) when he wrote that requiring public establishments to serve
blacks is a matter of "unsurpassed ugliness;" he was forty-four (44) when he wrote
that the first amendment does not protect scientific or literary speech; and sixty (60)
when he reiterated, just a few months ago, his view that the Constitution does not
protect our privacy.
I strongly encourage Judge Bork to be straightforward and clear with the commit-
tee. His record is voluminous. It would be a disservice to him and the country to
distort it.
47
These considerations lead me to be very troubled by this nomination. Judge Bork
could weakenliterally within a few yearsfundamental constitutional freedoms
which the Supreme Court has protected throughout its history.
The Senate's inquiry involves more than just a consideration of Judge Bork's pro-
fessional credentials. In the end, each Senator must search his or her conscience
and ask: Is the confirmation of Robert Bork in the interest of our country?
The CHAIRMAN. The Senate Republican Whip, Senator Simpson.
Senator SIMPSON. Thank you, Mr. Chairman.
Would you do all of that, really? [Laughter.]
OPENING STATEMENT OF SENATOR ALAN K. SIMPSON
Senator SIMPSON. Here we go again. We shall all be witness to
one of the peculiar things we see often in this great city. What we
now do is hereby targeted as "high drama," "the most critical issue
of the day," a "watershed," the "greatest test of the Presidency." It
is called the 4-H Club of hype, hoorah, hysteria and hubris.
I have served on this committee since I came to the U.S. Senate.
I chaired such a committee when I was in the Wyoming Legisla-
ture. It is a rich honor and privilege to do so. It is this kind of a
committee that I enjoy. I enjoy my colleagues. It has been a tre-
mendous privilege. It always commands my utmost respect, admi-
ration, and also, my energies.
I have served under the chairmanship of Ted Kennedy. I have
always been treated exceedingly fairly and most courteously by
him as chairman, and I have greatly enjoyed working with him on
illegal immigration and some other tough issues.
I have served under Strom Thurmond, one of the most extraordi-
nary and deeply respected Members of the Senate, a courtly, sin-
cere and dedicated man. He has been of great help to me and as-
sisted in enabling me to grow and learn in many ways.
Now I serve under the able chairmanship of Joe Biden. I have
come to enjoy him very much. He is good to deal with, a spirited
man of great energies and zest and enthusiasms, and he too has
been most generous to me.
Over the course of those years I have voted for judges presented
by Jimmy Carter and Ronald Reagan, some of them absolutely out-
standing. Some seemed to me to be steady and thoughtful, of what-
ever party, and they have proven to be so. I think of Ab Mikva and
Pat Wald in the other party, superb judges. And there have been
some real duds from both sides of the aislejust like in Congress.
I have learned much from this committee, from these fine mem-
bers on both sides of the aisle, but the single most remarkable
lesson learned, and yet probably the most disappointing revelation
to the layman, would be that I have found that you either pass or
kill a bill in the U.S. Congress by the use of a deft blend of emo-
tion, fear, guilt or racism.
We now debate the confirmation or rejection of Robert Bork with
the use of the same deft blend of emotion, fear, guilt or racism. The
American people deserve a lot better than that. That is really too
bad. That ought not to be so. Go scratch through the records. You
will find that I have never objected to a nominee of either party on
the basis of ideological grounds alone, not one.
48
I am certainly not saying this nominee should be somehow
spared ideological litmus tests of both sides. That will be. No com-
plaints. Ideology is a fair game, but surely not the acid test.
I do not agree with this nominee on several positions. Abortion
may be one. He is here to explain in full his judicial position on
that. I think he already has, if you read it honestly. As a personal
matter I happen to feel that this deeply intimate and awesome
human decision should be a woman's choice. Hopefully, it can be
made with the concurrence of the spouse, if one, and pastoral coun-
selors or physicians, but it should be her choice. Judge Bork's per-
sonal views on this issue are not our concern. Too bad that has to
now be the litmus test here.
Twice, you passed the confirmation of the U.S. Senate. Twice,
unanimously. Twice. I hope people remember that. They must have
new ground rules now over at the American Bar Association. I paid
my dues there for 18 years. They unanimously designated you as
being, quote, "exceptionally well qualified" in 1981, the highest
rating they can give. Obviously, they are a rather forgetful lot over
there. I think, at one time or another, every single member of this
committee has either toasted the ABA to the high heavens or
trashed them royally, depending on just how they rated one of
their particular favorite nominees.
Now you are going to have to pass some other tests. You used to
give them; now you are going to pass themtests about abortion,
affirmative action, civil rights, rights of privacy, homosexuality,
contraception. I have not heard it said yet, but there is the Gris-
wold case that they speak of here with great passionyou de-
scribed as "nutty." I think it was nutty, too.
So maybe we will get to the truth somewhere in all of this stuff.
Obviously, we are going to be picking at a lot of old scabs. Too bad.
Who among us here on this panelwe in the U.S. Senateare des-
ignated as the "official score keepers" of our fellow humans? Who
does or does not judge, when we put aside the mistakes, the utter-
ances, the errors of our earlier lives, and who in this room has not
felt the rush of embarrassment or pain or a feeling of plain stupidi-
ty about a phrase previously uttered or an act long ago committed?
Who of us here can pass that test, and who then are the judges of
that? Who appointed them?
Three present sitting members of the U.S. Senate voted against
the Civil Rights Bill of 1964three of our colleagues, along with
Bill Fulbright, Senators Ervin, Smathers, the vice presidential can-
didate of the United States, Sparkman and Senators Long and Rus-
sell. Are these then lessor people than us? Are they less respected?
Are they held up to a certain ridicule or to some different test? Of
course not. How absurd. All Bork did was write about it. They
voted about it.
Since this man's name was proposed by the President, the vari-
ous interest groups have been salivating at the chops, and I note
they have been thoroughly engrossed in an exercise that must be
the epitome of effort for a lawyerpouring over non-unanimous de-
cisions. What an exercise. Send them out to practice law for a few
days to represent some woman who says she is going to have an
abortion or commit suicide, or wants to get some dude out of her
hair that is chopping her to pieces, or represent a client that is in a
49
probate contest before the body has even cooled, or defend some
cowboy who chewed another guy's ear off. Send them out into real
life. Get them out from under their green eyeshades downtown and
let them do a little work. I referred to them once as "bug-eyed zeal-
ots." I have no reason to change that opinion at all.
Is this man wholly "outside the mainstream" of American
thought and judicial theory in America? I will not go any further.
There is the witness list. What an extraordinary witness list. Sup-
port from a President of the United States to the presidential
"Counsel Emeritus" of all, Lloyd Cutler, and everyone in between,
including our remarkable former Chief Justice Warren Burger and
Bill Ruckelshaus, and a panel of attorneys generalan extraordi-
nary array of people.
I have always felt that everyone is entitled to their own opinion,
but nobody is entitled to their own facts. You have been on the
bench. The Senate put you on the bench. The sitting members of
this committee put you on the bench unanimously. And Solicitor
General, unanimously. Each and every one of us. And what have
you done since? That should be an issue before us.
You have written 102 opinions and none of them have been over-
ruled. I will not go into that. Your six dissents. I will not go into
that. But I think it is important to notice that Judge Lewis Powell,
the "swing-vote," quote, that you replace, on the cases where he
was voting on your decisions agreed with you in 9 out of 10 of those
decisions. Let's not miss that. Do not let that go off the wall or skip
off the puddle.
You have, indeed, voted with Ab Mikva 82 percent of the time, or
he with you. And Pat Wald, 76 percent, Harry Edwards, 80 per-
cent, Skelley Wright, 75 percent. You must be doing something
right.
Well, I surely hope we do not spend an inordinate amount of
time on words uttered and printed in 1971 or 1963, or articles writ-
ten in 1979, or speeches made in 1954 or 1964 or 1974, or mistakes
made or opinions revised or arguments lost and found, unless we
would all want to go through that particular test. And as the bat-
tery of attorneys who have worked up a sweat on this one seem to
be gaining all of their material from non-unanimous decisions, I
think they really are going to do nothing more in the long run but
to be seen as replacing what was originally an intense hostility
toward your positions with what may prove to be a trivialization of
their own positioninstead of a strengthening of it. I think we are
going to watch that happen. I want to be here. I think it will.
There are not many of us here that would like to be at that
table, I can tell you. I always get a kick out of the argument,
"yeah, but we do not have to do that, we are United States Sena-
tors. We do not have to pass that kind of test. The voters do that
for us. This man is going to the Court."
I would sure hate to have someone rifling through the collected
utterances and scratchings of Al Simpson. Lord, I did things and
wrote things and said thingsI did all sorts of things when I was
20 and 30 and 40 and 50 that I am not very proud of, and even
today at this magnificent and mature age of 56 I still cross the fine
line between good humor and "smart aleck." And when I do, I usu-
ally get hammered and I think I usually deserve it.
50
So here we have before us a man who the American public is
going to get to know and see, and I think, understand in full con-
text. You will be subjected to some of the toughest and the easiest,
the most appropriate and the most inappropriate, and the most
thoughtful and the most unthoughtful, and the most inordinate
and inane questioning known to mansome of it laced with cyni-
cism and sarcasm. But you will be ready for that. I really think
you will.
After all, it was you yourself who said, in the Oilman case, quote:
"Those who step into the areas of public dispute, who choose the
pleasures and distractions of controversy, must be willing to bear
criticism, disparagement and even wounding assessments," un-
quote.
I have a hunch you like to mix it up, and there are some panel-
ists here that just love to do thatme tooand you are going to
get an awfully fine opportunity. My hunch is you are going to
acquit yourself very well. My stronger hunch is that you will make
a very fine addition to the U.S. Supreme Court. There, now, I too
have made a judgment before the hearings are concluded. A confes-
sion is made.
But the people who know you bestthose at the bench and the
bar and in academe and those in Congress who passed upon you
twiceafter thorough investigationswill share that view. So ours
is the task of advice and consent. Would you be wise, even-handed,
fair, responsible, and an intelligent associate justice? Do you meet
that test? That is what we are here for. That is what we should be
here for.
The test is not whether the nominee meets the approval of every
single special interest group who just happens to have a Washing-
ton office or a hyperactive executive director. That is not the test.
Or worse, a group that has been running a little low on funds since
the last guy they strung on the gallows was carried out feet first.
And there are a lot of them running around in this village.
I hope we do not do what we did the last time with Justice Rehn-
quist. It seems to be an unpleasant reality that a Supreme Court
nominee has every single constitutional protection until he or she
walks into this room. And once in this room, unlike a defendant in
a court of law, the nominee is not guaranteed any single right
analogous to the Miranda rule or the fifth amendment or anything
else. They are often meat for every form of accusation, innuendo
and irrelevant and immaterial statement. It is that part of the
process that disturbs me greatly and which I believe is unseemly
and the dark side of our deliberations.
So I hope there will be restraint. I think there will be. We have
our work to do. We must be about that in reviewing the work prod-
uct of this man, Mr. Chairman, and doing so exceedingly carefully
and not being delayed by aimless and remarkable volleys fired in
order to "get that guyget that man." We need not sully and
trash the highest standards of the United States Senate and this
committee in our work.
I intend to participate, Mr. Chairman, to listen, to hear, to try to
understand better, to try to understand the questioners, the oppo-
nents, the detractors. Will it be that we will get to where the scriv-
eners will eventually write, that the researchers will have finished
51
piling distinction upon distinction in non-uniform and non-unani-
mous decisions and gathered excised words and phrases to make
you look like a boob or a madman? Or will we settle in and get to
the know the essence of Robert Borkhuman being, lawyer, jurist,
author, debater, professor, nominee for the highest court in the
land? I hope that is what we will do, and I hope to help assure it.
Finally, I concludeand I thank the chairman for his courtesy
it seems to me in my extensive readings, and I really have done
some about you, that you have grown and learned and listened and
probed and debated and argued and challenged and have been in-
volved in that life long adventure of what I call "creeping maturi-
ty." That is a lot better than being lumped together with that great
legion of those of humankind known as the "dead un-killed."
I await your presentation with great anticipation. The chairman
and all members of the committee will assure that you will be
treated most fairly and courteously. That is the way he does it. So
welcome to you and to Mary Ellen and your family. I can assure
you that this will be absolutely the most stimulating class you have
ever been in.
Thank you very much.
The CHAIRMAN. Thank you, Senator Simpson, for that preview of
what the committee is about to do.
Judge Bork, I guarantee you this little mallet is going to assure
you every single right to make your views known, as long as it
takes, on any grounds you wish to make them. That is a guarantee,
so you do have rights in this room and I will assure you they will
be protected.
Judge BORK. Thank you, Mr. Chairman.
The CHAIRMAN. I would also like to suggest that we try to keep
to 10 minutes like we all agreed, if we could. I have not been call-
ing the clock, but it would be useful if we could.
Senator DeConcini.
OPENING STATEMENT OF SENATOR DENNIS DeCONCINI
Senator DECONCINI. Mr. Chairman, thank you.
Judge Bork, I am not here to get you or to hurt you or to embar-
rass you and my questions during this effort here are going to be a
far cry from what Senator Simpson seems to depict may happen to
you, at least from this Senator.
For the third time in my short career in the Senate I am joining
other members to do what I think is probably the second most im-
portant obligation we have as Senators. I guess, with the exception
to the power to declare war, this is a responsibility that, to me,
rests with us in the Constitution on the highest basis.
It is fitting that the Judiciary Committee begins the confirma-
tions of you, Judge Bork, during the week that we are celebrating
our 200th anniversary. That is a great day that is upon us this
week, as a matter of fact. My father was a lawyer and a Supreme
Court Judge in Arizona. I have been involved and interested in the
Constitution most of my life. And having served on the Bicenten-
nial Commission with other members of this committee, I have
gained a new respect and awareness of what our Founding Fathers
had, at least as I see.
52
The authors of the Constitution were worried that one branch of
government over time could dominate another. To prevent such im-
balance from occurring, they crafted a delicate system of checks
and balances among the three branches. It is as a part of that deli-
cate system signed 200 years ago this Thursday that we gather
here today to implement.
Because the Constitution contemplated that the three branches
of government be equal, the selection of a Supreme Court Justice is
just as important as the election of a new President or a new Con-
gress. As a matter of fact, the nomination and confirmation of a
Supreme Court Justice is a pivotal point of our system of checks
and balances. That is why we are all here today.
The founders did leave one important decision about the advice
and consent procedures for us to decide after the Constitution was
in place. What was left unanswered in 1787 was simply thiswhat
were the criteria by which the decision of nomination and confir-
mation should be made? Much controversy about these criteria has
existed over the years and that controversy remains as great today
as I believe it ever was.
Some supporters of you, Judge Bork, argue that the Senate
should not consider your philosophy and ideology but should decide
only whether you have the appropriate intellect, temperament and
integrity. Some of your opponents, on the other hand, argue that
not only may the Senate consider philosophy and ideology, we must
base our decision on the effects the nomination will have on future
decisions; every future decision of the Supreme Court.
There is no immutable standard contained in the Constitution or
any other law for Senators to look to when they are facing the re-
sponsibility before us today. Neither approach described above in
my opinion is right or wrong. The Framers of the Constitution left
the decision to each individual Senator based on his or her own
conscience and sense of responsibility.
I will base my decision on you, Judge Bork, on your ability and
experience, your temperament, your integrity, and whether or not
I believe you will decide the cases before you based on the Constitu-
tion, the statutes before you, the regulations, and to some extent,
the traditional interpretations of those items.
I would be opposed to any nominee whose intentions are to
ignore the precedents of the Court and lead it in a radically new
direction. I must be satisfied that in the guise of what you repre-
sent and Attorney General Meese called "judicial restraint," that
you, Judge Bork, are not a conservative judicial activist bent on im-
posing your own political philosophy on the Court and on this
nation.
It is obvious, Judge Bork, that you have an extreme intellect.
Your experience as a lawyer, as Solicitor General, as a law profes-
sor, and as a circuit court judge is very impressive to anyone. I
have been told by many mutual friends that you enjoy a wit and a
sense of humor, a congeniality with your other colleagues. From
what I have read about you, Judge Bork, I believe I would be
pleased personally with your views on the criminal justice system,
the right of the government to prosecute criminals swiftly, firmly
and finally.
53
The question is not whether I agree with you, Judge Bork, more
often than I disagree. I will not prepare a score card of your deci-
sions and vote according to the previous hit and misses that you
and I make. If I were to do this, I might find the score in your
favor. But this is not a game. There is no next day for the loser in
the Supreme Court.
The question that I will ask myself at the end of these confirma-
tions hearings is whether I am comfortable with the approach that
you take in applying the Constitution and federal laws to the facts
presented to you. Do I believe that faced with the difficult deci-
sions, with wide ranging implications, that you, Judge Bork, will
listen carefully to the arguments on both sides and then apply the
appropriate law in an objective and unbiased way? Or will you find
an intellectually supportable and highly articulated way to decide
the case as you see fit and how you feel it should come out?
In my opinion, we have had too many result-oriented Supreme
Court Justices. I spent the last several weeks reading many of your
opinions, your law review articles and speeches. I have read com-
ments and analyses by experts and commentators on both sides of
this issue. In addition, I have talked to literally thousands of people
in Arizona and outside my State.
I have identified the areas that concern me and I will not review
those now at this time but ask that they be included in my full
statement, but I will go into some detail.
The ultimate question that I must decide is whether I feel secure
putting our individual liberties, freedoms and the future of our
country in your hands. History will tell us if a Justice confirmed by
the Senate is truly what our Founding Fathers had in mind when
they created our system of checks and balances. I intend to do all I
can to determine if you, Judge Bork, measure up to that high
standard established by the Founding Fathers.
Thank you, and thank you, Mr. Chairman.
[The statement of Senator DeConcini follows:]
54
STATEMENT OF DENNIS DECONCINI

NOMINATION OF ROBERT H. BORK
TO BE AN ASSOCIATE JUSTICE OF THE
UNITED STATES SUPREME COURT
SEPTEMBER 15, 1987
FOR THE THIRD TIME IN MY TENURE AS A UNITED STATES SENATOR I
AM JOINING THE OTHER MEMBERS OF THE SENATE JUDICIARY COMMITTEE TO
FACE THE RESPONSIBILITY OF ADVICE AND CONSENT TO THE PRESIDENT'S
NOMINATION OF AN INDIVIDUAL TO BE AN ASSOCIATE JUSTICE ON THE
SUPREME COURT OF THE UNITED STATES. WITH THE EXCEPTION OF THE
POWER TO DECLARE WAR, I BELIEVE THIS RESPONSIBILITY IS THE MOST
IMPORTANT ONE GRANTED TO THE SENATE BY OUR CONSTITUTION. IT IS
FITTING THAT THE JUDICIARY COMMITTEE BEGIN THE CONFIRMATION
HEARINGS ON JUDGE ROBERT H. BORK DURING THE WEEK THAT WE CELEBRATE
THE 200TH ANNIVERSARY OF THAT GREAT DOCUMENT.
BECAUSE MY FATHER WAS A LAWYER AND MEMBER OF ARIZONA'S
SUPREME COURT, I HAVE BEEN INTERESTED IN OUR CONSTITUTION MOST OF
MY LIFE. BUT AS A MEMBER OF THE COMMISSION ON THE BICENTENNIAL OF
THE UNITED STATES CONSTITUTION, I HAVE GAINED NEW RESPECT FOR THE
WISDOM AND FORESIGHT OF OUR FOUNDING FATHERS. THE AUTHORS OF THE
CONSTITUTION WERE WORRIED THAT ONE BRANCH OF GOVERNMENT WOULD,
OVER TIME, COME TO DOMINATE THE OTHERS. TO PREVENT SUCH AN
IMBALANCE FROM OCCURRING, THEY CRAFTED A DELICATE SYSTEM OF CHECKS
AND BALANCES AMONG THE THREE BRANCHES. IT IS AS PART OF THAT
DELICATE SYSTEM SIGNED 200 YEARS AGO ON THURSDAY, THAT WE GATHER
HERE TODAY.
55
BECAUSE THE CONSTITUTION CONTEMPLATES THAT THE THREE BRANCHES

OF GOVERNMENT BE EQUAL, THE SELECTION OF A SUPREME COURT JUSTICE
IS JUST AS IMPORTANT AS THE ELECTION OF A NEW PRESIDENT OR OF A
NEW CONGRESS. AS A MATTER OF FACT, THE NOMINATION AND
CONFIRMATION OF A SUPREME COURT JUSTICE IS THE PIVOTAL POINT OF
OUR SYSTEM OF CHECKS AND BALANCES. IT IS THE FULCRUM ON WHICH THE
SYSTEM IS MOST CAREFULLY AND DELICATELY BALANCED.
THE FOUNDERS DID LEAVE ONE IMPORTANT DECISION ABOUT THE
ADVICE AND CONSENT PROCEDURE FOR US TO DECIDE AFTER THE
CONSTITUTION WAS IN PLACE. WHAT WAS LEFT UNANSWERED IN 1787 WAS
THIS: WHAT CRITERIA WERE THE CRITERIA BY WHICH THE DECISIONS OF
NOMINATION AND CONFIRMATION SHOULD BE MADE? MUCH CONTROVERSY
ABOUT THESE CRITERIA HAS EXISTED OVER THE YEARS, AND THAT
CONTROVERSY REMAINS AS GREAT TODAY AS IT HAS EVER BEEN.
SOME SUPPORTERS OF JUDGE BORK ARGUE THAT THE SENATE SHOULD
NOT CONSIDER HIS PHILOSOPHY OR IDEOLOGY, BUT SHOULD DECIDE ONLY
WHETHER HE HAS THE APPROPRIATE INTELLECT, TEMPERAMENT, AND
INTEGRITY. JUDGE BORK'S OPPONENTS, ON THE OTHER HAND, ARGUE THAT
NOT ONLY MAY THE SENATE CONSIDER PHILOSOPHY AND IDEALOGY, WE MUST
BASE OUR DECISION ON THE EFFECT THE NOMINATION WILL HAVE ON FUTURE
DECISIONS OF THE SUPREME COURT.
THERE IS NO IMMUTABLE STANDARD CONTAINED IN THE CONSTITUTION
OR ANY OTHER LAW FOR SENATORS TO LOOK TO WHEN FACED WITH THE
RESPONSIBILITY OF VOTING ON A SUPREME COURT JUSTICE. NEITHER
APPROACH DESCRIBED ABOVE IS RIGHT OR WRONG. THE FRAMERS OF THE
56
CONSTITUTION LEFT THE DECISION TO EACH INDIVIDUAL SENATOR BASED ON

HIS OR HER OWN CONSCIENCE AND SENSE OF RESPONSIBILITY.
I WILL BASE MY DECISION ON JUDGE BORK ON HIS LEGAL ABILITIES
AND EXPERIENCE, HIS TEMPERAMENT, HIS INTEGRITY, AND ON WHETHER OR
NOT I BELIEVE HE WILL DECIDE THE CASES BEFORE HIM BASED ON THE
CONSTITUTION, STATUTES, REGULATIONS, AND, TO SOME EXTENT, THE
TRADITIONAL INTERPRETATIONS OF THEM. I WOULD BE OPPOSED TO ANY
NOMINEE WHOSE INTENTIONS ARE TO IGNORE THE PRECEDENTS OF THE COURT
AND LEAD IT IN RADICALLY NEW DIRECTIONS. I MUST BE SATISFIED THAT
IN THE GUISE OF WHAT JUDGE BORK AND ATTORNEY GENERAL MEE_CALL
"JUDICIAL RESTRAINT", JUDGE BORK IS NOT A CONSERVATIVE JUDICIAL
ACTIVIST BENT ON IMPOSING HIS OWN POLITICAL PHILOSOPHY ON THE
COURT AND ON THE NATION.
IT IS OBVIOUS JUDGE BORK IS EXTREMELY ABLE INTELLECTUALLY.
HIS EXPERIENCE AS A LAWYER, AS SOLICITOR GENERAL, AS A LAW
PROFESSOR AND AS A CIRCUIT COURT JUDGE IS AS IMPRESSIVE AS THAT OF
ANYONE WHO HAS BEEN NOMINATED FOR THE SUPREME COURT IN MANY
YEARS. I HAVE BEEN TOLD BY MANY MUTUAL FRIENDS THAT JUDGE BORK IS
A WITTY AND CONGENIAL MAN WHO WOULD GET ALONG WELL WITH HIS
COLLEAGUES ON THE COURT. FROM WHAT I HAVE READ ABOUT JUDGE BORK,
I BELIEVE I WOULD BE PLEASED PERSONALLY WITH HIS VIEWS ON CRIMINAL
JUSTICE AND THE RIGHTS OF THE GOVERNMENT TO PROSECUTE CRIMINALS
SWIFTLY AND FINALLY.
THE QUESTION IS NOT WHETHER I AGREE WITH JUDGE BORK MORE
OFTEN THAN I DISAGREE WITH HIM. I WILL NOT PREPARE A SCORECARD OF
HIS DECISIONS AND VOTE ACCORDING TO HIS PREVIOUS HITS AND MISSES.
57
IF I WERE TO DO SO, I MIGHT FIND THE SCORE IN HIS FAVOR. BUT THIS
IS NOT A GAME. THERE IS NO NEXT DAY FOR THE LOSERS IN THE SUPREME
COURT.
THE QUESTION THAT I WILL ASK MYSELF AT THE END OF THESE
CONFIRMATION HEARINGS IS WHETHER I AM COMFORTABLE WITH THE
APPROACH THAT JUDGE BORK TAKES IN APPLYING THE CONSTITUTION AND
FEDERAL LAWS TO THE FACTS PRESENTED TO HIM. Do I BELIEVE THAT
FACED WITH A DIFFICULT DECISION WITH WIDE-RANGING IMPLICATIONS,
JUDGE BORK WILL LISTEN CAREFULLY TO THE ARGUMENTS ON BOTH SIDES
AND THEN APPLY THE APPROPRIATE LAW IN AN OBJECTIVE AND UNBIASED
WAY? OR WILL HE FIND AN INTELLECTUALLY SUPPORTABLE AND HIGHLY
ARTICULATE WAY TO DECIDE THE CASE AS HE WANTS IT TO COME OUT? IN
MY OPINION, WE HAVE HAD TOO MANY RESULTS-ORIENTED SUPREME COURT
JUSTICES.
I HAVE SPENT THE LAST SEVERAL WEEKS READING MANY OF JUDGE
BORK'S OPINIONS, LAW REVIEW ARTICLES AND SPEECHES. I HAVE READ
COMMENTS AND ANALYSES BY EXPERTS AND COMMENTATORS BOTH FOR AND
AGAINST JUDGE BORK. IN ADDITION, I HAVE TALKED TO LITERALLY
THOUSANDS OF PEOPLE ABOUT JUDGE BORK IN ARIZONA AND THROUGHOUT THE
COUNTRY. I HAVE IDENTIFIED THE AREAS THAT CONCERN ME AND I INTEND
TO DISCUSS THESE WITH JUDGE BORK AT THE HEARINGS THIS WEEK.
I AM CONCERNED ABOUT JUDGE BORK'S PAST STATEMENTS ON CIVIL
RIGHTS AND EQUAL PROTECTION. HE HAS CRITICIZED MANY OF THE
SUPREME COURT DECISIONS THAT BROUGHT BLACKS IN THIS COUNTRY OUT OF
THE QUASI-SLAVERY THAT HAD EXISTED SINCE THE CLVIL WAR. HE HAS
CRITICIZED DECISIONS THAT HAVE BROUGHT SOME MEASURE OF LEGAL
58
EQUALITY TO WOMEN. HE HAS EXPRESSED A VERY NARROW VIEW OF THE

CONSTITUTION'S APPLICABILITY TO ISSUES OF CIVIL RIGHTS.
I AM CONCERNED ABOUT HOW JUDGE BORK VIEWS THE PURPOSE AND
APPLICATION OF OUR ANTITRUST LAWS. MANY ANTITRUST EXPERTS WHO
HAVE READ HIS VIEWS HAVE CONCLUDED THAT HE WOULD REPEAL MOST OF
THEM. I NEED TO BE SATISFIED HE THAT HE WON'T ATTEMPT TO REPEAL
THEM FROM THE BENCH.
THERE ARE OTHER ISSUES THAT I AM INTERESTED IN HEARING JUDGE
BORK DISCUSS. HE HAS EXPRESSED AN OPINION OF FIRST AMENDMENT
PROTECTION OF FREEDOM OF SPEECH THAT IS MORE RESTRICTIVE THAN MOST
EXPERTS BELIEVE IS PROPER. HE HAS SAID THAT THE CONSTITUTION DOES
NOT GUARANTEE AN INDIVIDUAL A RIGHT TO PRIVACY. JUDGE BORK HAS
ISSUED DECISIONS AND EXPRESSED VIEWS THAT SEEM TO INDICATE THAT HE
FAVORS THE EXECUTIVE BRANCH IN ANY DISPUTE WITH THE LEGISLATIVE.
IN ADDITION, THERE ARE QUESTIONS ABOUT HIS INTEGRITY THAT
MUST BE ANSWERED. WE MUST HEAR HIS EXPLANATIONS ABOUT HIS ROLE IN
THE FIRING OF THE WATERGATE SPECIAL PROSECUTOR AND HIS SUBSEQUENT
EXPLANATIONS OF IT. THERE IS A QUESTION ABOUT NON-PAYMENT OF
TAXES THAT WE MUST BE SATISFIED ABOUT. THERE IS ALSO AN
ALLEGATION FROM A FEDERAL JUDGE THAT JUDGE BORK FAILED TO WRITE A
DECISION IN CONFORMANCE WITH AN UNDERSTANDING REACHED AMONG THREE
FEDERAL JUDGES.
THE ULTIMATE QUESTION I MUST DECIDE IS WHETHER I FEEL SECURE
PUTTING OUR INDIVIDUAL LIBERTY/ FREEDOMS/ AND THE FUTURE OF OUR
COUNTRY IN HIS HANDS. HISTORY WILL TELL US IF A JUSTICE CONFIRMED
BY THE SENATE IS TRULY WHAT OUR FOUNDING FATHERS HAD IN MIND WHEN
THEY CREATED OUR SYSTEM OF OF CHECKS AND BALANCES. I INTEND TO DO
ALL I CAN TO DETERMINE IF JUDGE BORK MEASURES UP TO THE HIGH
STANDARDS ESTABLISHED BY OUR FOUNDING FATHERS.
59
Senator Grassley.
OPENING STATEMENT OF SENATOR CHARLES E. GRASSLEY
Senator GRASSLEY. Thank you, Mr. Chairman.
Judge Bork, I would like to first add my welcome, before I start,
to you and your family as you appear before this committee. I
know you, too, are eager to use your appearance as a way to ad-
dress the many questions raised about your nomination. Of course,
I am eager to hear your views as well.
It is often saidand I think correctly sothat one of the Sen-
ate's most important functions is that of reviewing the President's
nominations to the Supreme Court.
Sadly, I believe this important function has been demeaned.
Your nomination has been turned into a real life and death battle
among the direct mail "giants" of American lobbying. The intense
lobbying has transformed this nomination into the legislative
equivalent of a pork barrel water projectall strong-armed politics
* * * no substance!
The partisans who act as the "generals" in this "war" of mud
slinging have had some success. In fact, some members of the
Senate have outflanked each other for the honor of taking the most
extreme position, even before the first day of the hearings!
I think such positions are as intemperate as they are premature.
It puts the judgment ahead of the inquiryprecisely the kind of
closed-mindedness that some accuse this nominee of having. These
remarks are mindful of the famous passage from "Alice in Wonder-
land," where the Queen of Hearts says to Alice, "Sentence first,
verdict afterwards!"
I am just one of 100 Senators. But I am here to say at the outset
of these hearings that I have found much of the furor of the past 2
months deplorable.
I will bet this intellectually empty debate over a Supreme Court
nominee would come as a big surprise to at least one of our Consti-
tution's foundersAlexander Hamilton. Hamilton was, of course,
the first to articulate the vital power of judicial review, in Federal-
ist No. 78. At the same time, however, he recognized that the judi-
cial branch was to be the weakest of the three Departments. In his
words, the judiciary was supposed to have neither force nor will,
only judgment.
The framers, such as Hamilton, expected that choices among
competing social values would be made by the people's elected rep-
resentativesnot by the unelected judiciary.
Perhaps this furor during the summer of 1987 only confirms how
far the judiciary has drifted from its original purpose of 1787.
It is no exaggeration to sayespecially in this the bicentennial of
our Constitutionthat the existence of constitutional government
in America hinges on the capacity and the willingness of the Su-
preme Court to interpret the Constitution consistent with its true
intent. Accordingly, it is our awesome responsibility to ensure, as
best we can, that a President's nominee to the Supreme Court pos-
sesses this capacity and willingness.
60
Beyond the mere resume of this nominee, outstanding as it may
be, he is not qualified to serve as a Justice in my view unless he is
willing to exercise self-restraintself-restraint which enables him
to accept the Constitution as his rule of decisionself-restraint
which makes him resist the temptation to revise or amend that
document according to his personal views of what is good public
policy.
Former Chief Justice Stone identified this duty of the Court
when he remarked in U.S. v. Butler in 1936, and I quote: "* * *
While the unconstitutional exercise of power by the executive and
legislative branches of Government is subject to judicial restraint,
the only check upon our own exercise of power is our own sense of
self-restraint."
Judges have no license to toy with the Constitution as if it were
their personal plaything, rather than the precious heritage of all
Americans.
As Justice Frankfurter wrote in his majority opinion in Ullman
v. U.S., and I quote: "Nothing new can be put into the Constitution
except through the amendatory process. Nothing old can be taken
out without that same process."
Unfortunately, a new generation of judges seems to have forgot-
ten that they are appointed, not anointed. These judgesincluding
some who have served on the Supreme Courthave demonstrated
an impatience with the democratic processes upon which our
nation was founded and on which it has flourished. Instead, they
would abuse the power of judicial review to impose their own view
of wise public policy. They would prefer to act as scientists who use
some kind of "judicial alchemy" to transform the words of the Con-
stitution into meanings contrary to its plain reading or intent.
I am unalterably opposed to this kind of judicial arrogation of
legislative and executive function.
I believe that judges must give full effect to values that may be
fairly discovered in the text, language and history of the Constitu-
tion and apply them to modern conditions. But unelected and unac-
countable judges should not freely overturn the legitimate policy
choices of the equal, elected branches, solely because of personal
preference. That is why the Founding Fathers, such as Alexander
Hamilton, referred to the judiciary as the "least dangerous"
branch. And that is what judicial restraint is all about.
The nominee before us today has weighed-in many times against
the kind of judicial activism that tends to create rights not granted
in the Constitution or the statutes. Frankly, his view that judges
ought to confine themselves to interpreting the law, rather than
advocating their own ideas of "wise" public policy, is very appeal-
ing to me.
I am anxious to hear more of these views, to see if they follow in
the tradition of restraint practiced by Frankfurter, Holmes, Bran-
deis, Stewart, Powell and a few others.
Along the way, I expect that opponents of this nominee will
likely focus on specific views or decisions that they disagree with. I
urge my colleagues to keep their eyes on what I believe to be the
real issue in this confirmation debate. The real issue is the extent
to which judges should respect the decision-making of the elected
representative branches of government.
61
Make no mistake about it; the critics of this nominee know the
law they prefer is judge-made, and therefore susceptible to change
by other judges. Their loud protests underscore that the law they
prefer is not found in the Constitution or the statutes.
If their views were found in the democratically-enacted law, they
would have no fear of any new judge pledged to live by the credo of
judicial restraint. Instead, these critics prefer judges who will act
as some kind of "super legislature"who will give them victories
in the courts when they lose in the legislature.
Judge Bork, I look forward to learning more about you from your
own words in the next few days.
Having identified my standard of review for this nomination, I
would like to use my remaining time to add my thoughts to a much
debated pointthe Senate's proper "advise and consent" role for
this nomination.
Traditionally, the Senate's role has been a very limited one. The
Senate has not made a nominee's political philosophy the test for
confirmation.
For example, it is universally acknowledged that judicial nomi-
nees should not be asked to commit themselves on particular
points of law in order to satisfy a Senator's politics.
I can illustrate the Senate's usual advise and consent standard
with some passages from the nomination hearing of Justice O'Con-
nor.
As our now Chairman Senator Biden said, and I quote: "We are
not attempting to determine whether or not the nominee agrees
with all of us on each and every pressing social or legal issue of the
day. Indeed, if that were the test, no one could be passed by this
committee, much less the full Senate."
Or as Senator Kennedy stated at that same time, and I quote: "It
is offensive to suggest that a potential justice of the Supreme Court
must pass some presumed test of judicial philosophy. It is even
more offensive to suggest that a potential justice must pass the
litmus test of any single issue interest group."
Or Senator Metzenbaum, who at the same time said, and I quote:
"I come to this hearing with no preconceived notions. If I happen
to disagree with you on any specific issues, it will in no way affect
my judgment of your abilities to serve on the Court."
I might add that I very much agree with every one of my col-
leagues in these statements on the Senate's role. Each of these
views carefully recognizes that the power to give advice is not the
power to decide the issue. From George Washington to Ronald
Reagan, the President has enjoyed a range of discretion in nomi-
nating Supreme Court judges. Since 1894, the Senate has deferred
to the President's choice in all but four cases.
The Senate should refuse its consent only when the President's
discretion has been abused. Giving the Senate the last word, with-
out such deference, would mean the Senate has the only word. This
constitutional power the framers did not give to us.
Of course, in the absence of constitutional power, raw political
power can fill the vacuum. I will stipulate right now to the ability
of a handful of my colleagues to block this nomination; but I be-
lieve it would be the wrong way to approach this serious Senate
duty.
62
The dangers of politicizing the nomination process are exceeded
only by its short-sightedness. After all, Presidential electionsand
Supreme Court nominationscome and go.
I urge my colleagues to resist the clarion call of raw politics that
undermines the independent judiciary contemplated by Article III
of the Constitution.
In closing, if my colleagues cannot resist the use of bald political
power, I would at least hope that they have the courage to shed the
"fig leaf behind which they hide their real agenda.
Thank you, Mr. Chairman.
63
STATEMENT OF SENATOR CHARLES E. GRASSLEY
ON THE NOMINATION OF ROBERT H. BORK TO BE AN ASSOCIATE JUSTICE

OF THE SUPREME COURT OF THE UNITED STATES
SEPTEMBER 15, 1987
THANK YOU MR. CHAIRMAN. JUDGE BORK, I'D LIKE TO FIRST ADD MY
WELCOME TO YOU AND YOUR FAMILY AS YOU APPEAR BEFORE THIS COMMITTEE
AGAIN. I KNOW YOU ARE EAGER TO USE YOUR APPEARANCE AS A WAY TO
ADDRESS THE MANY QUESTIONS RAISED ABOUT YOUR NOMINATION. I AM
EAGER TO HEAR YOUR VIEWS, AS WELL.
IT IS OFTEN SAID AND I THINK CORRECTLY SO -- THAT ONE OF

THE SENATE'S MOST IMPORTANT FUNCTIONS IS THAT OF REVIEWING THE
PRESIDENT'S NOMINATIONS TO THE SUPREME COURT.
SADLY, I BELIEVE THIS IMPORTANT FUNCTION HAS BEEN DEMEANED.

YOUR NOMINATION HAS BEEN TURNED INTO A LIFE AND DEATH BATTLE AMONG
THE DIRECT-MAIL "GIANTS" OF AMERICAN LOBBYING. THE INTENSE
LOBBYING HAS TRANSFORMED THIS NOMINATION INTO THE LEGISLATIVE
EQUIVALENT OF A PORK BARREL WATER PROJECT ALL STRONG-ARMED
POLITICS . . . NO SUBSTANCE!
THE PARTISANS WHO ACT AS THE "GENERALS" IN THIS "UAR" OF MUD

SLINGING HAVE HAD SOME SUCCESS. IN FACT, SOME MEMBERS OF THE
SENATE HAVE OUTFLANKED EACH OTHER FOR THE "HONOR" OF TAKING THE
MOST EXTREME POSITION ~ BEFORE THE FIRST DAY OF HEARINGS!
I THINK SUCH POSITIONS ARE AS INTEMPERATE AS THEY ARE

PREMATURE. IT PUTS THE JUDGMENT AHEAD OF THE INQUIRY PRECISELY
THE KIND OF CLOSE-MINDEDNESS THAT SOME ACCUSE THIS NOMINEE OF
HAVING. THESE REMARKS ARE MINDFUL OF THE FAMOUS PASSAGE FROM
ALICE IN WONDERLAND, WHERE THE QUEEN OF HEARTS SAYS TO ALICE
"SENTENCE FIRST, VERDICT AFTERWARDS"!
I AM JUST 1 OF 100 SENATORS. BUT I'M HERE TO SAY AT THE

OUTSET OF THESE HEARINGS THAT I'VE FOUND MUCH OF THE FUROR OF THE
PAST TWO MONTHS DEPLORABLE.
I'LL BET THIS INTELLECTUALLY-EMPTY DEBATE OVER A SUPREME

COURT NOMINEE WOULD COME AS A BIG SURPRISE TO AT LEAST ONE OF OUR
CONSTITUTION'S FOUNDERS ALEXANDER HAMILTON. HAMILTON WAS, OF
COURSE, THE FIRST TO ARTICULATE THE VITAL POWER OF JUDICIAL
REVIEW. AT THE SAME TIME, HOWEVER, HE RECOGNIZED THAT THE
JUDICIAL BRANCH WAS TO BE THE WEAKEST OF THE T H R U DFPARTMENTS.
IN HIS WORDS, THE JUDICIARY WAS SUPPOSED TO HAVE NEITHER FORCE NOR
WILL, ONLY JUDGMENT.
THE FRAMERS SUCH AS HAMILTON EXPECTED THAT CHOICES AMONG

COMPETING SOCIAL VALUES WOULD BE MADE BY THE PEOPLE'S ELECTED
REPRESENTATIVES ~ NOT BY THE UNELECTED JUDICIARY.
PERHAPS THIS FUROR DURING THE SUMMER OF 1987 ONLY CONFIRMS

HOW FAR THE JUDICIARY HAS DRIFTED FROM ITS ORIGINAL PURPOSE OF
1787.
IT IS NO EXAGGERATION TO SAY ESPECIALLY IN THIS THE

BICENTENNIAL OF OUR CONSTITUTION THAT THE EXISTENCE OF
CONSTITUTIONAL GOVERNMENT IN AMERICA HINGES ON THE CAPACITY AND
WILLINGNESS OF THE SUPREME COURT TO INTERPRET THE CONSTITUTION
CONSISTENT WITH ITS TRUE INTENT. ACCORDINGLY, IT IS OUR AWESOME
RESPONSIBILITY TO ENSURE AS BEST WE CAN -- THAT A PRESIDENT'S
NOMINEE TO THE SUPREME COURT POSSESSES THIS CAPACITY AND
WILLINGNESS.
BEYOND THE MERE RESUMF OF THIS NOMINEE -- OUTSTANDING AS IT

MAY BE HE IS NOT QUALIFIED TO SERVE AS A JUSTICE IN MY VIEW
UNLESS HE IS WILLING TO EXERCISE SELF-RESTRAINT . . .
SELF-RESTRAINT WHICH ENABLES HIM TO ACCEPT THE CONSTITUTION AS HIS
RULE OF DECISION . . . SELF-RESTRAINT WHICH MAKES HIM RESIST THE
64
TEMPTATION TO REVISE OR AMEND THAT DOCUMENT ACCORDING TO HIS

PERSONAL VIEWS OF WHAT IS GOOD PUBLIC POLICY.
FORMER CHIEF JUSTICE STONE IDENTIFIED THIS DUTY OF THE COURT

WHEN HE REMARKED IN U.S. v. BUTLER IN 1936: . . ."THAT WHILE THE
UNCONSTITUTIONAL EXERCISE OF POWER BY THE EXECUTIVE AND
LEGISLATIVE BRANCHES OF GOVERNMENT IS SUBJECT TO JUDICIAL
RESTRAINT, THE ONLY CHECK UPON OUR OWN EXERCISE OF POWER IS OUR
OWN SENSE OF SELF-RESTRAINT."
JUDGES HAVE NO LICENSE TO TOY WITH THE CONSTITUTION AS IF IT

WERE THEIR PERSONAL PLAYTHING, RATHER THAN THE PRECIOUS
INHERITANCE OF ALL AMERICANS.
AS JUSTICE FRANKFURTER WROTE IN HIS MAJORITY OPINION IN

ULLMAN L L U - S . - "NOTHING NEW CAN BE PUT INTO THE CONSTITUTION
EXCEPT THROUGH THE AMENDATORY PROCESS. NOTHING OLD CAN BE TAKEN
OUT WITHOUT THAT SAME PROCESS."
UNFORTUNATELY, A NEW GENERATION OF JUDGES SEEMS TO HAVE

FORGOTTEN THAT THEY ARE APPOINTED, NOT ANNOINTED. THESE JUDGES
INCLUDING SOME WHO HAVE SERVED ON THE SUPREME COURT HAVE
DEMONSTRATED AN IMPATIENCE WITH THE DEMOCRATIC PROCESSES UPON
WHICH OUR NATION WAS FOUNDED, AND HAS FLOURISHED. INSTEAD, THEY
WOULD ABUSE THE POWER OF JUDICIAL REVIEW TO IMPOSE THEIR OWN VIEW
OF WISE PUBLIC POLICY. THEY WOULD PREFER TO ACT AS SCIENTISTS WHO
USE A KIND OF "JUDICIAL ALCHEMY" TO TRANSFORM THE WORDS OF THE
CONSTITUTION INTO MEANINGS CONTRARY TO ITS PLAIN READING OR
INTENT.
I AM UNALTERABLY OPPOSED TO THIS KIND OF JUDICIAL ARROGATION

OF LEGISLATIVE AND EXECUTIVE FUNCTION.
I BELIEVE THAT JUDGES MUST GIVE FULL EFFECT TO VALUES THAT

MAY BE FAIRLY DISCOVERED IN THE TEXT, LANGUAGE AND HISTORY OF THE
CONSTITUTION AND APPLY THEM TO MODERN CONDITIONS. BUT UNELECTED
AND UNACCOUNTABLE JUDGES SHOULD NOT FREELY OVERTURN THE LEGITIMATE
POLICY CHOICES OF THE EQUAL, ELECTED BRANCHES, SOLELY BECAUSE OF
PERSONAL PREFERENCE. THAT'S WHY THE FOUNDING FATHERS SUCH AS
HAMILTON REFERRED TO THE JUDICIARY AS THE "LEAST DANGEROUS"
BRANCH. AND THAT'S WHAT JUDICIAL RESTRAINT IS ALL ABOUT.
THE NOMINEE BEFORE US HAS WEIGHED-IN MANY TIMES AGAINST THE

KIND OF JUDICIAL ACTIVISM THAT TENDS TO CREATE RIGHTS NOT GRANTED
IN THE CONSTITUTION OR THE STATUTES. FRANKLY, HIS VIEW THAT
JUDGES OUGHT TO CONFINE THEMSELVES TO INTERPRETING THE LAW, RATHER
THAN ADVOCATING THEIR OWN IDEAS OF "WISE" PUBLIC POLICY, IS
APPEALING TO ME.
I AM ANXIOUS TO HEAR MORE OF THESE VIEWS, TO SEE IF THEY

FOLLOW IN THE TRADITIONS OF RESTRAINT PRACTICED BY FRANKFURTER,
HOLMES, BRANDEIS, STEWART, POWELL AND OTHERS.
ALONG THE WAY, I EXPECT THAT OPPONENTS OF THIS NOMINEE WILL

LIKELY FOCUS ON SPECIFIC VIEWS OR DECISIONS THEY DISAGREE WITH. I
URGE MY COLLEAGUES TO KEEP THEIR EYES ON WHAT I BELIEVE TO BE THE
REAL ISSUE IN THIS CONFIRMATION DEBATE.
THE REAL ISSUE IS THE EXTENT TO WHICH JUDGES SHOULD RESPECT

THE DECISION-MAKING OF THE ELECTED, REPRESENTATIVE BRANCHES OF
GOVERNMENT.
MAKE NO MISTAKE ABOUT IT; THE CRITICS OF THIS NOMINEE KNOW

THE LAW THEY PREFER IS JUDGE-MADE AND THEREFORE SUSCEPTIBLE TO
CHANGE BY OTHER JUDGES. THEIR LOUD PROTESTS UNDERSCORE THAT THE
LAW THEY PREFER ISH'T FOUND IN THE CONSTITUTION OR THE STATUTES.
IF THEIR VIEWS WERE FOUND IN THE DEMOCRATICALLY-ENACTED LAW,

THEY WOULD HAVE NO FEAR OF ANY NEW JUDGE PLEDGED TO LIVE BY THE
CREDO OF JUDICIAL RESTRAINT. INSTEAD, THESE CRITICS PREFER JUDGES
WHO WILL ACT AS A KIND OF "SUPER-LEGISLATURE" WHO WILL GIVE
THEM VICTORIES IN THE COURTS WHEN THEY LOSE IN THE LEGISLATURE.
65
JUDGE BORK, I LOOK FORWARD TO LEARNING MORE ABOUT YOU, FROM

YOUR OWN WORDS.
HAVING IDENTIFIED MY STANDARD OF REVIEW FOR THIS NOMINATION,

I'D LIKE TO USE MY REMAINING TIME TO ADD MY THOUGHTS TO A
MUCH-DEBATED POINT -- THE SENATE'S PROPER "ADVISE AND CONSENT"
ROLE FOR THIS NOMINATION.
TRADITIONALLY, THE SENATE'S ROLE HAS BEEN A LIMITED ONE. THE

SENATE HAS NOT MADE A NOMINEE'S POLITICAL PHILOSOPHY THE TEST FOR
CONFIRMATION.
FOR EXAMPLE, IT'S UNIVERSALLY ACKNOWLEDGED THAT JUDICIAL

NOMINEES SHOULDN'T BE ASKED TO COMMIT THEMSELVES ON PARTICULAR
POINTS OF LAW IN ORDER TO SATISFY A SENATOR'S POLITICS.
I CAN ILLUSTRATE THE SENATE'S USUAL ADVISE AND CONSENT

STANDARD WITH SOME PASSAGES FROM THE NOMINATION HEARINGS OF
JUSTICE O'CONNOR.
AS OUR NOW-CHAIRMAN, SENATOR BIDEN SAID: "WE ARE NOT

ATTEMPTING TO DETERMINE WHETHER OR NOT THE NOMINEE AGREES WITH ALL
OF US ON EACH AND EVERY PRESSING SOCIAL OR LEGAL ISSUE OF THE DAY.
INDEED, IF THAT WERE THE TEST, NO ONE WOULD PASS BY THIS
COMMITTEE, MUCH LESS THE FULL SENATE".
OR AS SENATOR KENNEDY STATED THEN: "IT IS OFFENSIVE TO

SUGGEST THAT A POTENTIAL JUSTICE OF THE SUPREME COURT MUST PASS
SOME PRESUMED TEST OF JUDICIAL PHILOSOPHY. IT IS EVEN MORE
OFFENSIVE TO SUGGEST THAT A POTENTIAL JUSTICE MUST PASS THE LITMUS
TEST OF ANY SINGLE-ISSUE INTEREST GROUP".
OR SENATOR METZENBAUM, WHO SAID: "I COME TO THIS HEARING

WITH NO PRECONCEIVED NOTIONS. IF I HAPPEN TO DISAGREE WITH YOU ON
ANY SPECIFIC ISSUES, IT WILL IN NO WAY AFFECT MY JUDGMENT OF YOUR
ABILITIES TO SERVE ON THE COURT".
I MIGHT ADD THAT I AGREE WITH EVERY ONE OF MY COLLEAGUES IN

THESE STATEMENTS ON THE SENATE'S ROLE. EACH OF THESE VIEWS
CAREFULLY RECOGNIZES THAT THE POWER TO GIVE ADVICE IS NOT THE
POWER TO DECIDE THE ISSUE. FROM GEORGE WASHINGTON TO RONALD
REAGAN, THE PRESIDENT HAS ENJOYED A RANGE OF DISCRETION IN
NOMINATING SUPREME COURT JUSTICES. SINCE 1894, THE SENATE HAS
DEFERRED TO THE PRESIDENT'S DISCRETION IN ALL BUT FOUR CASES.
THE SENATE SHOULD REFUSE ITS CONSENT ONLY WHEN THE

PRESIDENT'S DISCRETION HAS BEEN ABUSED. GIVING THE SENATE THE
LAST WORD, WITHOUT SUCH DEFERENCE, WOULD MEAN THE SENATE HAS THE
ONLY WORD. THIS CONSTITUTIONAL POWER THE FRAMERS DID NOT GIVE US.
OF COURSE, IN THE ABSENCE OF CONSTITUTIONAL POWER, RAW

POLITICAL POWER CAN FILL THE VACUUM. I WILL STIPULATE RIGHT NOW
TO THE ABILITY OF A HANDFUL OF MY COLLEAGUES TO BLOCK THIS
NOMINATION . . . BUT I BELIEVE IT WOULD BE THE WRONG HAY TO
APPROACH THIS SERIOUS SENATE DUTY.
THE DANGERS OF POLITICIZING THE NOMINATION PROCESS ARE

EXCEEDED ONLY BY ITS SHORTSIGHTEDNESS. AFTER ALL, PRESIDENTIAL
FLECTIONS -- AND SUPREME COURT NOMINATIONS -- COME AND GO.
I URGE MY COLLEAGUES TO RESIST THE CLARION CALL OF RAW

POLITICS THAT UNDERMINES THE INDEPENDENT JUDICIARY CONTEMPLATED BY
ARTICLE III OF THE CONSTITUTION.
IF MY COLLEAGUES CANNOT RESIST THE USE OF BALD POLITICAL

POWER, I WOULD AT LEAST HOPE THEY HAVE THE COURAGE TO SHED THE
"FIG LEAF" BEHIND WHICH THEY HIDE THEIR REAL AGENDA.
MR. CHAIRMAN, THANK YOU VERY MUCH.

66
The CHAIRMAN. Thank you. I advise my colleagues to stick as

close to the 10-minute rule as you can. I do not want to have to
start to impose, as all other committees do, rule by the clock. That
statement was an eloquent 20-minute statement, and previous
statements have been almost as long. So please, please, keep within
the 10 minutes. It seems I always say it to the people who are keep-
ing within the 10 minutes, but I am going to start to enforce the
10-minute rule. Otherwise, as moved by all our statements that
Judge Bork, I am sure, is, none of us will get to have any lunch.
The Senator from Vermont, Senator Leahy.
OPENING STATEMENT OF SENATOR PATRICK J. LEAHY
Senator LEAHY. Thank you, Mr. Chairman. I am delighted to
have the admonition. I am also pleased to welcome you, Judge
Bork, to the Judiciary Committee this morning and your family.
We arrived in the U.S. Senate today at a moment that is really
unique in our system of government. Two hundred years ago this
week, the delegates to the Constitutional Convention completed
their work with a fantastic document that has helped this country
flourish for 200 years since.
I think not the least of their achievement was the method estab-
lished for choosing the leaders of the judicial branch of govern-
ment. The authors of our Constitution recognized that this decision
was far too important to leave to the unfettered discretion of either
of the other two branches. They said it had to be shared by them.
So our proceeding this morning, or this noon, really, joins the in-
terest of all three branches of the national government in one
place.
The goal of the process we begin today is the conveyance of the
guardianship of the Constitution. It is a solemn moment, but it is
also a moment that teaches much about the system of government
established in Philadelphia two centuries ago.
I suppose this confirmation hearing is going to have some aspects
reminiscent of both a trial by ordeal or even a graduate seminar on
constitutional law. But it is not going to be either. It is going to be
an opportunity for Americans in the bicentennial year of the Con-
stitution to see the Constitution in action. I hope Americans are
going to be proud of what they see.
The confirmation proceeding formally begins today, but it has
really been under way for weeks. In fact, one prominent feature of
that process so far has been an interesting debate on the role of the
Senate in carrying out its constitutional duty to aclvise and con-
sent. The focus has been on the role that the nominee's judicial
philosophy should play in the Senate's consideration of this nomi-
nation.
I believe that judicial philosophy should play a central role.
Judge Bork, you and I have already discussed that matter. After
all, as the final arbiter of what the Constitution means, the Su-
preme Court is the ultimate guardian of the liberties of every
American. There is no question that the nominee who is confirmed
to succeed Justice Lewis Powell is going to be uniquely influential
in determining the direction of the Supreme Court's interpretation
of the Constitution for many years to come. There can hardly be an
67
issue closer to the heart of the Senate's role than a full and public
exposition of the nominee's approach to the Constitution and to the
role of the courts in discerning and enforcing its commands. That
is my definition of judicial philosophy.
Because I believe that judicial philosophy is so important, I have
devoted an awful lot of beautiful summer days up in Vermont in
an effort to learn and understand the judicial philosophy of Robert
Bork. In fact, everywhere I went in Vermont throughout the
month of August, I had people come up to me and speak either for
or against this nomination. In fact, I heard more about this issue
than any issue in the 13 years that I have been in the U.S. Senate.
In fact, Judge Bork, during the few days that you and your wife got
a chance to also be in Vermont, you probably heard a little bit
about it, too.
I do not claim to understand Judge Bork's judicial philosophy
completely. But having spent time immersed in his writing, his
speeches, his articles, his judicial decisions, his interviews, his
other works has told me a lot about the nominee's conception of
the Constitution and what it will mean for the Supreme Court and
for our nation if Judge Bork is confirmed.
Now, he has sharply criticized some of the views of what he de-
scribes as the "intellectual class," but even though he has done
that, it is clear to me that Robert Bork is an intellectual, of the
first order. He is a thinker; he is a philosopher. And he comes
before this committee with a more comprehensive and clearly ex-
pressed judicial philosophy than any nominee to the Supreme
Court in recent history. That becomes really the good news and the
bad news, depending upon which side somebody might fall on this
nomination.
America's Supreme Court Justices have taken many paths to the
high bench in that beautiful building that is just a block from here.
For the most part, the Justices have ascended to that bench as the
culmination of careers as practicing lawyers, or as jurists, or as
high ranking government officials. But Judge Bork has been all
three of these things at one time or another. If he is confirmed to
the Supreme Court, he also comes as a distinguished legal philoso-
pher as well.
But his philosophy is distinguished in another way besides its
comprehensiveness and clarity. It stands apart as a record of con-
sistent and forceful opposition to the mainstream of modern consti-
tutional jurisprudence. I doubt that any other nominee to the Su-
preme Court has ever come before this committee with a record of
such unremitting and relentless opposition to the directions that
the Court has taken on such a wide range of issues that touch on
the basic freedoms of the American people.
In article after article, in speech after speech, Judge Bork has
criticized the constitutional decisions of the Supreme Courtnot
once, not a few times, not a dozen, but in scores of decisions. He
has called these decisions "unprincipled," "intellectually empty,"
and even "unconstitutional." His targets have included the Court's
major decisions in areas as important as free speech, the right of
privacy and equal protection of the laws.
Now, in the writings I have read, Judge Bork denounces these
decisions emphatically, definitively, and very often eloquently. But
68
the elegance of his presentation should not obscure a central fact.
He believes that the Supreme Court has taken the wrong path.
More precisely, he believes that the Court has wandered off the
path into a trackless wilderness, far from the signposts erected in
our written Constitution. In fact, he has been consistent and clear
and eloquent, and I think that that consistency has also attracted
him to the President and the Attorney General in this nomination.
But I am troubled by the record of Judge Bork's philosophy as I
understand it today. I am struck by the breadth of his opposition to
established precedent, ranging from broad constitutional matters to
narrower questions of the antitrust laws and other statutes. I am
disturbed by some of the interpretations that he proposes for the
majestic but general phrases of our Constitution: "freedom of
speech," "liberty," and "equal protection of the laws." And I am
concerned about the consequences of his philosophy.
The decisions of the Supreme Court shape in large part the con-
tours of our freedoms. Even the familiar contours of freedoms long
established in the Court's precedents can be changed as the power
to shape them changes hands. And so we must be concerned about
the shape our freedoms will take if the Senate agrees to give this
nominee, whose judicial philosophy is so critical of so many prece-
dentsa pivotal portion of the power to overturn them.
But I am also aware that the perspective I have gained so far on
Judge Bork's judicial philosophy is incomplete. Times change and
so sometimes do the beliefs of men and woman who live through
those years.
I hope that through these hearings we can learn more about
Judge Bork's judicial philosophy. I know his views on some issues
have changed over the years. I will be interested to learn whether
and how his views on some of these fundamental constitutional
questions have been refined or modified or even abandoned. I look
forward to the testimony of the distinguished scholars and lawyers
and other witnesses before this committee who have studied the
philosophy far more extensively than I have. I will be most inter-
ested in Judge Bork's own testimony on these questions because he
really is the one who can speak most eloquently, most completely,
and, I believe, most honestly to his own philosophy and his own
idea of the role of a Supreme Court Justice.
We welcome you to the hearing. If you do not know exactly what
to expect from the confirmation process, well, you are not totally
alone. There are some things we can say with certainty about this
proceeding. It is going to be long; it will be thorough; it will be in-
formative; and I know I voice the sentiments of every member of
this committee when I say it will be fair. We really want it to be.
Speaking as one Senator, I can tell you that it will be approached
with a seriousness and a thoughtfulness that befits its status as one
of the most important duties of a United States Senator.
In closing, let me just say one other thing. We have ai. awful lot
of hearings up here, confirmation hearings. In the 13 years I have
been here, there have been hundreds of them. Everybody from
military officers to Cabinet members to Supreme Court Justices.
Almost 95 percent of the time, those confirmation hearings simply
provide a record because the person is confirmed either unanimous-
ly or overwhelmingly afterward. The confirmation hearing fulfills
69
the constitutional role, but it really does not change anybody's
mind.
In your case, it will. I think this confirmation hearing will be one
of those rare instances, certainly in my lifetime, where a confirma-
tion hearing has determined whether a nominee will be confirmed
or not. So I think this hearing takes on a seriousness and impor-
tance to you as an individual, but to the country even more so than
virtually any hearing in my lifetime, and certainly in the time that
I have been here in the Senate.
[The statement of Senator Leahy follows:]
70
OPENING STATEMENT OF SENATOR PATRICK J. LEAHY
I AM PLEASED TO WELCOME JUDGE BORK TO THE JUDICIARY COMMITTEE

THIS MORNING.
WE HAVE ARRIVED IN THE UNITED STATES SENATE TODAY AT A MOMENT
THAT IS UNIQUE IN OUR SYSTEM OF GOVERNMENT. TWO HUNDRED YEARS AGO

THIS WEEK, THE DELEGATES TO THE CONSTITUTIONAL CONVENTION
COMPLETED THEIR WORK. THE FRUIT OF THEIR LABORS WAS A REMARKABLE
DOCUMENT: AN ORGANIC LAW UNDER WHICH THE UNITED STATES HAS

FLOURISHED AND PROSPERED FOR TWO CENTURIES. NOT THE LEAST OF
THEIR ACHIEVEMENTS WAS THE METHOD ESTABLISHED FOR CHOOSING THE
LEADERS OF THE JUDICIAL BRANCH OF GOVERNMENT. THE AUTHORS OF OUR

CONSTITUTION RECOGNIZED THAT THIS DECISION WAS TOO IMPORTANT TO
LEAVE TO THE UNFETTERED DISCRETION OF EITHER OF THE OTHER TWO

BRANCHES/ BUT MUST BE SHARED BETWEEN THEM. THUS/ OUR PROCEEDING
THIS MORNING JOINS THE INTERESTS OF ALL THREE BRANCHES OF THE
NATIONAL GOVERNMENT ESTABLISHED BY THE PEOPLE.
THE GOAL OF THE PROCESS WE BEGIN TODAY IS THE CONVEYANCE OF

THE GUARDIANSHIP OF THE CONSTITUTION. IT IS A SOLEMN MOMENT/ BUT
ALSO A MOMENT THAT TEACHES MUCH ABOUT THE SYSTEM OF GOVERNMENT
ESTABLISHED IN PHILADELPHIA TWO CENTURIES AGO.
THE TESTIMONY OF A SUPREME COURT NOMINEE AT HIS OWN

CONFIRMATION HEARING IS A MUCH MORE RECENT INNOVATION. I AM SURE
THAT JUDGE BORK MUST BE ASKING HIMSELF AT THIS MOMENT WHETHER
THERE ISN'T SOME WAY TO HAVE THAT INNOVATION DECLARED
UNCONSTITUTIONAL.
SOME OBSERVERS OF THE PROCESS HAVE NO DOUBT ADVISED JUDGE

BORK TO EXPECT SOMETHING AKIN TO A MUCH MORE ANCIENT ANGLO-SAXON
LEGAL PROCEEDING: TRIAL BY ORDEAL. OTHERS, NOTING THE NUMBER OF
LEGAL SCHOLARS WHO WILL TESTIFY LATER/, MAY HAVE LIKENED IT TO AN
ENVIRONMENT WITH WHICH JUDGE BORK IS MORE FAMILIAR: A GRADUATE
SEMINAR ON CONSTITUTIONAL LAW. I SUPPOSE THIS CONFIRMATION
71
HEARING WILL HAVE ASPECTS REMINISCENT OF BOTH THOSE PROCEEDINGS.

BUT REALLY IT WILL BE NEITHER. IT WILL BE AN OPPORTUNITY FOR
AMERICANS/ IN THE BICENTENNIAL YEAR OF THE CONSTITUTION, TO SEE
THE CONSTITUTION IN ACTION, I HOPE THEY WILL BE PROUD OF WHAT
THEY SEE.
THE CONFIRMATION PROCESS FORMALLY BEGINS TODAY. BUT OF

COURSE IT HAS ALREADY BEEN UNDERWAY FOR WEEKS. ONE PROMINENT
FEATURE OF THAT PROCESS SO FAR HAS BEEN AN INTERESTING DEBATE ON
THE ROLE OF THE SENATE IN CARRYING OUT ITS CONSTITUTIONAL DUTY TO
ADVISE AND CONSENT. THE FOCUS HAS BEEN ON THE ROLE THAT THE
NOMINEE'S JUDICIAL PHILOSOPHY SHOULD PLAY IN THE SENATE'S
CONSIDERATION OF THIS NOMINATION.
I BELIEVE THAT JUDICIAL PHILOSOPHY SHOULD PLAY A CENTRAL

ROLE. AFTER ALL, AS THE FINAL ARBITER OF WHAT THE CONSTITUTION
MEANS, THE SUPREME COURT IS THE ULTIMATE GUARDIAN OF THE LIBERTIES
OF EVERY AMERICAN. THERE IS NO QUESTION THAT THE NOMINEE WHO IS
CONFIRMED TO SUCCEED JUSTICE LEWIS POWELL WILL BE UNIQUELY
INFLUENTIAL IN DETERMINING THE DIRECTION OF THE SUPREME COURT'S
INTERPRETATION OF THE CONSTITUTION FOR YEARS TO COME. THERE CAN
HARDLY BE AN ISSUE CLOSER TO THE HEART OF THE SENATE'S ROLE THAN A
FULL AND PUBLIC EXPOSITION OF THE NOMINEE'S APPROACH TO THE
CONSTITUTION AND TO THE ROLE OF THE COURTS IN DISCERNING AND
ENFORCING ITS COMMANDS. THAT IS WHAT I MEAN BY JUDICIAL
PHILOSOPHY.
BECAUSE I BELIEVE THAT JUDICIAL PHILOSOPHY IS SO IMPORTANT, I

HAVE DEVOTED A GREAT MANY BEAUTIFUL SUMMER DAYS IN VERMONT TO AN
EFFORT TO LEARN AND UNDERSTAND THE JUDICIAL PHILOSOPHY OF ROBERT
BORK. I CANNOT CLAIM TO UNDERSTAND IT COMPLETELY. BUT THE TIME I
HAVE SPENT IMMERSED IN JUDGE BORK'S WRITINGS - - H I S SPEECHES,
ARTICLES, JUDICIAL DECISIONS, INTERVIEWS AND OTHER WORKS HAS
TOLD ME A LOT ABOUT THE NOMINEE'S CONCEPTION OF THE CONSTITUTION
AND WHAT IT WILL MEAN FOR THE SUPREME COURT, AND FOR OUR NATION,
IF HE IS CONFIRMED.
72
ALTHOUGH HE HAS SHARPLY CRITICIZED SOME OF THE VIEWS OF WHAT

HE DESCRIBES AS THE "INTELLECTUAL CLASS," IT IS CLEAR TO ME THAT
ROBERT BORK IS AN INTELLECTUAL. HE IS A THINKER AND A
PHILOSOPHER. AND HE COMES BEFORE THIS COMMITTEE WITH A MORE
COMPREHENSIVE AND CLEARLY EXPRESSED JUDICIAL PHILOSOPHY THAN ANY
NOMINEE TO THE SUPREME COURT IN RECENT HISTORY.
AMERICA'S SUPREME COURT JUSTICES HAVE TAKEN MANY PATHS TO THE

HIGH BENCH IN THAT MAJESTIC BUILDING.A FEW BLOCKS FROM WHERE WE
SIT THIS MORNING. FOR THE MOST PART, THE JUSTICES HAVE ASCENDED TO
THAT BENCH AS THE CULMINATION OF CAREERS AS PRACTICING LAWYERS, AS
JURISTS, AS HIGH-RANKING GOVERNMENT OFFICIALS. JUDGE BORK HAS
BEEN ALL THESE THINGS AT ONE TIME OR ANOTHER, BUT IF HE IS
CONFIRMED, HE WILL COME TO THE SUPREME COURT AS A DISTINGUISHED
LEGAL PHILOSOPHER AS WELL.
BUT JUDGE BORK'S PHILOSOPHY IS DISTINGUISHED IN ANOTHER WAY,

BESIDES ITS COMPREHENSIVENESS AND CLARITY. IT STANDS APART AS A
RECORD OF CONSISTENT AND FORCEFUL OPPOSITION TO THE MAINSTREAM OF
MODERN CONSTITUTIONAL JURISPRUDENCE. I DOUBT THAT ANY OTHER
NOMINEE TO THE SUPREME COURT HAS EVER COME BEFORE THIS COMMITTEE
WITH A RECORD OF SUCH UNREMITTING AND RELENTLESS OPPOSITION TO THE
DIRECTIONS THAT THE COURT HAS TAKEN ON SUCH A WIDE RANGE OF ISSUES
THAT TOUCH ON THE BASIC FREEDOMS OF THE AMERICAN PEOPLE.
IN ARTICLE AFTER ARTICLE, SPEECH AFTER SPEECH, JUDGE BORK HAS

CRITICIZED THE CONSTITUTIONAL DECISIONS OF THE SUPREME COURT
NOT ONE, NOT A FEW, NOT A DOZEN, BUT SCORES OF DECISIONS. HE HAS
CALLED THESE DECISIONS "UNPRINCIPLED," "INTELLECTUALLY EMPTY," AND
EVEN "UNCONSTITUTIONAL." HLS TARGETS HAVE INCLUDED THE COURT'S
MAJOR DECISIONS IN AREAS AS IMPORTANT AS FREE SPEECH, THE RIGHT OF
PRIVACY, AND EQUAL PROTECTION OF THE LAWS.
IN THE WRITINGS I HAVE READ, JUDGE BORK DENOUNCES THESE

DECISIONS EMPHATICALLY, DEFINITIVELY, AND OFTEN ELOQUENTLY. BUT
THE ELEGANCE OF HIS PRESENTATION SHOULD NOT OBSCURE A CENTRAL
FACT. JUDGE BORK BELIEVES THAT THE SUPREME COURT HAS TAKEN THE
73
WRONG PATH. MORE PRECISELY, HE BELIEVES THAT THE COURT HAS

WANDERED OFF THE PATH, INTO A TRACKLESS WILDERNESS, FAR FROM THE
SIGNPOSTS ERECTED IN OUR WRITTEN CONSTITUTION.
I AM TROUBLED BY THE RECORD OF JUDGE BORK'S PHILOSOPHY, AS I

UNDERSTAND IT TODAY. I AM STRUCK BY THE BREADTH OF HIS OPPOSITION
TO ESTABLISHED PRECEDENT, RANGING FROM BROAD CONSTITUTIONAL,
MATTERS TO NARROWER QUESTIONS OF THE ANTITRUST LAWS AND OTHER
STATUTES. I AM DISTURBED BY SOME OF THE INTERPRETATIONS THAT HE
PROPOSES FOR THE MAJESTIC BUT GENERAL PHRASES OF OUR CONSTITUTION:
"FREEDOM OF SPEECH," "LIBERTY," "EQUAL PROTECTION OF THE LAWS."
AND I AM CONCERNED ABOUT THE CONSEQUENCES OF HIS

PHILOSOPHY. OURS IS A GOVERNMENT OF LAWS. BUT MEN AND WOMEN MUST
INTERPRET AND APPLY THOSE LAWS. MEN AND WOMEN MUST TRANSLATE THE
MAJESTIC GENERALITIES OF THE CONSTITUTION INTO PRACTICAL RULES
THAT DEFINE OUR LIBERTIES. AND NO ONE KNOWS BETTER THAN JUDGE BORK
THAT THE CONCEPTION OF THE CONSTITUTION HELD BY THE MEMBERS OF THE

SUPREME COURT IS REFLECTED IN THE INTERPRETATIONS OF THE
CONSTITUTION THEY HAND DOWN AS THE LAW OF THE LAND.
THE DECISIONS OF THE SUPREME COURT SHAPE IN LARGE PART THE

CONTOURS OF OUR FREEDOMS. EVEN THE FAMILIAR CONTOURS OF FREEDOMS
LONG ESTABLISHED IN THE COURT'S PRECEDENTS CAN BE CHANGED AS THE
POWER TO SHAPE THEM CHANGES HANDS. AND SO WE MUST BE CONCERNED
ABOUT THE SHAPE OUR FREEDOMS WILL TAKE IF THE SENATE AGREES TO
GIVE THIS NOMINEE WHOSE JUDICIAL PHILOSOPHY IS SO CRITICAL OF

SO MANY PRECEDENTS A PIVOTAL PORTION OF THE POWER TO OVERTURN
THEM.
74
BUT I AM ALSO AWARE THAT THE PERSPECTIVE I HAVE GAINED SO FAR

ON JUDGE BORK'S JUDICIAL PHILOSOPHY IS INCOMPLETE. TIMES CHANGE,
AND SO, SOMETIMES, DO THE BELIEFS OF MEN AND WOMEN WHO LIVE
THROUGH THOSE TIMES.
I HOPE THAT THROUGH THESE HEARINGS WE CAN LEARN MORE ABOUT

JUDGE BORK'S JUDICIAL PHILOSOPHY. I KNOW HIS VIEWS ON SOME ISSUES
HAVE CHANGED OVER THE YEARS. I WILL BE INTERESTED TO LEARN
WHETHER AND HOW HIS VIEWS ON SOME OF THESE FUNDAMENTAL
CONSTITUTIONAL QUESTIONS HAVE BEEN REFINED, MODIFIED, OR EVEN
ABANDONED. I LOOK FORWARD TO THE TESTIMONY OF THE DISTINGUISHED
SCHOLARS, LAWYERS, AND OTHER WITNESSES BEFORE THIS COMMITTEE WHO
HAVE STUDIED THIS PHILOSOPHY FAR MORE EXTENSIVELY THAN I HAVE,
AND I WILL BE PARTICULARLY INTERESTED IN JUDGE BORK'S OWN
TESTIMONY ON THESE QUESTIONS.
JUDGE BORK, WELCOME TO THIS HEARING. IF YOU DO NOT KNOW

EXACTLY WHAT TO EXPECT FROM THE CONFIRMATION PROCESS, YOU ARE NOT
ALONE. THERE ARE SOME THINGS WE CAN. SAY WITH CERTAINTY ABOUT THIS
PROCEEDING. IT WILL BE LONG. IT WLTL BE THOROUGH. IT WILL BE
INFORMATIVE. I KNOW I VOICE THE SENTIMENTS OF EVERY MEMBER OF
THIS COMMITTEE WHEN I SAY IT WILL BE FAIR. AND SPEAKING AS ONE
SENATOR, I CAN TELL YOU THAT IT WILL BE APPROACHED WITH A
SERIOUSNESS AND A THOUGHTFULNESS THAT BEFITS ITS STATUS AS ONE OF
THE MOST IMPORTANT DUTIES OF A UNITED STATES SENATOR.
75
The CHAIRMAN. Thank you very much. We have four morefive
if I count myselfpeople to speak. If we keep it to 10 minutes, we
can finish by about 10 after. I will withhold my statement until we
come back, and I will tell those who need to make plans now we
will not reconvene until 2:30 when we come back.
The Senator from Pennsylvania, Senator Specter.
OPENING STATEMENT OF SENATOR ARLEN SPECTER
Senator SPECTER. Thank you, Mr. Chairman.
Judge Bork, I join my colleagues in welcoming you here. At the
outset, I compliment you for being available for discussions with
Judiciary Committee members in a somewhat different way than
prior occasions. As you know, there are informal sessions, and
when we met you were willing to discuss at some length your ap-
proach to constitutional law. One of the threshold questions which
you and I discussed was whether you thought it appropriate to deal
with the question of judicial philosophy. At that time you said you
did, and we then had extensive discussions on issue of judicial phi-
losophy. And I believe that that is very helpful. It may be that in
your own situation, having written as prolifically as you have, that
there was so much fat in the fire, so to speak, to be discussed. But I
think that this confirmation hearing may set a precedent.
Some of us were concerned about the hearings last year involv-
ing Chief Justice Rehnquist and Justice Scalia in terms of the in-
ability to get to some of the issues. So I think that it is very useful,
both for your confirmation hearing and for the process generally.
In my own mind, a good bit of the issue turns on whether many
of your prior writings constitute professorial theorizing or repre-
sent established judicial positions that you would vote if you were
on the Supreme Court of the United States. As I read your prior
writings, they are at sharp variance with Justices from Oliver
Wendell Holmes to William Rehnquist. They are in agreement
with many Justices, but as I see it, there are significant variations:
the equal protection clause, for example, where you have written
applicable only to race and have stated in later speeches that it is
race and perhaps ethnic matters, which is at variance with what
the Court has decided for more than a century, extending equal
protection to aliens, to women and to indigents and to illegitimates
and to others. The issue of due process is a very important issue.
The one of freedom of speech in your writings is at variance with
the Holmes standard for clear and present danger. Those are some
of the issues which I believe are important.
I think that the matters which have been raised really in your
writings span the spectrum of constitutional issues, and I think it
would be useful to have extensive discussions as to your view of the
Constitution. For me, the test is whether you fit within the tradi-
tion of U.S. constitutional jurisprudence.
I come to these hearings with an open mind, and I am prepared
to listen to your views on these subjects and to make a decision
based upon what I hear significantly in this room. Your prior back-
ground cannot be ruled out, and what I have read about you and
what I know about you and your opinions and your speeches and
76
your Law Review articles are, of course, important. But I think the
central issue is what you will testify in this proceeding.
On the issues which I have raised so far, my sense is that the
President is entitled to appropriate deference in his selection of a
Supreme Court nominee. I will be interested in your view on that
philosophical question as well.
There is another subject which may present a somewhat differ-
ent issue, and that turns on the matter of the conflict between the
executive and legislative branch, article I and article II of the Con-
stitution. There are many issues where the President and the Con-
gress differ historically and differ today; for example, on the War
Powers Act or, for example, on independent counsel or, for exam-
ple, on congressional oversight of covert action. There, you have
written extensively, and there is a question in my mind as to
whether your own views would tip the scale in favor, inordinately
in favor of executive control.
I am not sure, and I have seen no writings on this subject as to
whether the traditional deference which the Senate gives to the ex-
ecutive appointing power would be applicable in that range be-
cause the Court, of course, is article III of the Constitution. That is
a subject which is of real concern to me, one that I thought about
and one that I will seek your opinion about.
The writings which you have undertaken have been extensive.
One of the professors has criticized you for campaigning for the Su-
preme Court, going from podium to podium, making speeches. It
may be that in this group that is quite a commendation. That is
what we do all the time, go from podium to podium, and I frankly
find no problem with that. The real issue is one of interpretation of
the Constitution and where you stand.
The comments which you have made have been colorful. There
has been a certain quality of toughness, perhaps a biting quality,
and I think we will be interested in some of those matters in terms
of your approach, some acerbity in some of the things which you
have had to say about the Court. One of the comments which I
found particularly intriguing was one of your referencesthis is an
old law journal article, but I think they are relevant to talk about.
I do not weigh them too heavily, but I think they are relevant
where you referred to the Supreme Court's "institutionalized role
as perpetrator of limited coups d'etats." And you suggested that
the Court was no more "legitimate than any other institution," so
"if the Court will not listen, why not argue the case to some other
group, say the Joint Chiefs of Staff, a body with a rather better
means for implementing its decisions." An interesting approach.
It may be that so much of what is in your writing is hyperbole
and something that a Justice or a professor would have to write
about to attract attention. We know in the Senate people think
that we have great platforms, but very frequently we think nobody
listens to us, and probably they should not listen to most of what
we have to say. So perhaps what you have written which appears
to be at variance with established constitutional doctrine is such
hyperbole.
Those, for me, are the issues which are presented here and the
matters which I will focus on when my turns comes to question on
the key factors upon which I will make my decision.
77
I yield back the balance of my time.

The CHAIRMAN. Thank you very much, Senator. I appreciate
that.
The Senator from Alabama, Senator Heflin.
OPENING STATEMENT OF SENATOR HOWELL HEFLIN
Senator HEFLIN. Mr. Chairman, often in these hallowed halls, we
say that we are engaged in an historic process. Such statements,
sincerely made, are sometimes true. Seldom, however, do we stop
to think of the significance of those statements. I would propose we
do so today.
Today, we are participating in a process to determine the fitness
of the nominee to become an Associate Justice of the highest Court
of our land.
This process, historic as it is, has meaning for men and women
10 years from now, 20 years from now, and even into the next cen-
tury, for judicial opinions have real consequences for real people.
Judicial confirmations, likewise, have real consequences for the
men and women of America.
Even though the proceedings of the Supreme Court are not tele-
vised, the Supreme Court is really "The People's Court." While it
deals, on one level, with abstract legal propositionsstanding, ripe-
ness, due process and the likethe Court at heart deals with
people, their rights, their liberties, their property, their disputes
and grievances and their means of redress and resolution. There is
not a single case which comes to the Court which, in some manner,
does not involve or affect people.
My point is a simple one, and it is one that underscores the im-
portance of the position, Judge Bork, to which you have been nomi-
nated. Judicial opinions rendered in real cases and controversies
involve real people and have actual consequences:
They determine where and with whom people may live, and the
legal limits of permissible activity in which people may engage;
They determine where and with whom children may go to school,
what textbooks they may use, and what, if any, prayers they may
pray;
They determine the rights of people to be secure in their homes,
properties and thoroughfares, the rights of all people to enjoy the
fruits of their toil and the pursuits after happiness;
They determine the rights of victims and the rights of the ac-
cused;
They determine delicate questions of personal privacy;
They also determine what books we may read, what movies we
may see, and by result though not intent, what stories the press
may cover and how they may cover them.
These hearings, then, are about justice, about the rights of indi-
viduals and the rights of society as a whole. In essence, equality
under the law. The question, then, for us is whether the ends of
justice will be further served, or disserved, by our vote for or
against confirmation.
Let us be intellectually honest with ourselves and with the
American people. Let us put out on the table, get out in the open,
those things we hear, those allegations made in the media and in
86-974 0 - 8 9 - 5
78
the letters, telegrams and the phone calls we receive. Let us air all
of the arguments, pro and con, about this nominee.
We are told by some that Judge Bork is a brilliant man, an eru-
dite scholar whose credentials, experience and fundamental integri-
ty are beyond question.
We are told by others that Judge Bork is intolerant and that he
will personally be responsible for the courts rolling back the clock
on advances in the areas of individual rights, racial progress and
personal privacy.
We are told by some that Judge Bork will strictly construe the
Constitution, eschewing activism and interpreting the law, not sub-
stituting his personal opinion for what the law should be.
We are told by others that Judge Bork is an extremist, an ideo-
logue of the first order, a legal zealot who will use his position on
the Court to advance a far right radical judicial agenda.
We are told that President Reagan is entitled to have his nomi-
nees confirmed unless they are incompetent or dishonest.
We are told by others, however, that President Reagan made his
choice on the basis of ideology, which some contend is an impermis-
sible criterion. Still others say if ideology is a permissible criterion
for the President, then it is a permissible factor for the Senate to
consider in evaluating this nomination.
To all of Judge Bork's sponsors and supporters, I say come for-
ward. Let us have the evidence about competence, tolerance and
fairness.
To all Judge Bork's critics and detractors, I likewise say come
forward. Let us have the evidence of incompetence, intolerance and
unfairness.
While the hearing process should be comprehensive and com-
plete, there is, nevertheless, one area of inquiry which should be
approached with caution; that is in the area of the nominee's reli-
gious beliefs.
There are those who charge that Judge Bork is an agnostic or a
non-believer. These critics contend that such beliefs will affect the
opinions of the courts and, hence, our churches, our synagogues,
and, ultimately, our lives. While voicing concern about the proprie-
ty of a religious test, some critics contend, nevertheless, that this is
a legitimate area of inquiry, for in determining the fitness of a
nominee, they argue, one must look to the total manhis reason-
ing process and the reaches of his values and views.
However, let me remind my colleagues that clause (3) of article
VI of the Constitution of the United States clearly provides that
"no religious test shall be required as a qualification to any office
or public trust under the United States."
This clause, as well as the spirit of the freedom of religion clause
in the first amendment, should be carefully observed in pursuing
any inquiry, whether it be legitimate or not, as to one's personal
religious feelings.
I can say with great conviction three things: Judicial activism of
the right is to be dreaded, surely as much as activism of the left;
Violence to the principle of stare decisis in a results-oriented
rush to a predetermined outcome is to be feared, surely as much as
violence in the streets;
79
An ideological predisposition, or, worse, commitment to roll back
the clock on individual equality and personal liberties is abhorrent
to our now fundamental precepts of a fair and just society.
Judge Bork, if the committee is convinced that you will balance
society's need for law and order with individual rights and person-
al freedoms; that your jurisprudence is deferential to elected
bodies; and that you do not have a proclivity for activism, then
your confirmation chances are enhanced.
However, if the evidence shows that you are intelligent but an
ideologuea zealotthat you are principled but prejudiced, that
you are competent but closed-minded, then there is considerable
doubt as to whether you will be confirmed by the Senate.
Having said all these things, we do not at this stage know what
the evidence will adduce. Therefore, to all of my colleagues, and to
our respective constituents, I say let us not prejudge. Let us hear
the evidence, analyze it, weigh it. I have spoken of feared and
dreaded judicial maladies, but the worst judicial or legislative dis-
ease is a closed mind.
In determining the fitness of this nominee, let no mind be closed
by either blind party allegiance or rigid ideological adherence. Let
no Senator approach these hearings with anything less than an
awesome sense of responsibility to do what is right in his or her
own mind. We each must follow the mandates of our conscience.
A vote to confirm or not to confirm this nominee is more than
just a vote. It is a reaffirmation of our commitment to the Constitu-
tion, to equality, to a stable democratic society, to liberty, to jus-
tice.
Let the hearing process begin. Let the record be made. Let fair-
ness prevail. Let justice be done.
80
STATEMENT OF
SENATOR HOWELL HEFLIN
NOMINATION OF JUDGE ROBERT H. BORK
TO THE UNITED STATES SUPREME COURT
SEPTEMBER 15, 1987
MR. CHAIRMAN:
Often, In these hallowed halls, we say that we are engaged in
an historic process. Such statements, sincerely made, are
sometimes true. Seldom, however, do we stop to think of the
significance of those statements. I would propose we do so today.
Today we are participating in a process to determine the
fitness of the nominee to become an associate justice of the
highest court of our land.
This process historic as it is has meaning for men and
women ten years from now, twenty years from now, and into the next
century -- for, as judicial opinions have real consequences for
real people, judicial confirmations, likewise, have real
consequences for the men and women of America.
Even though the proceedings of the Supreme Court are not
televised, the Supreme Court is really "the People's Court."
While it deals, on one level, with abstract legal propositions
standing, ripeness, due process and the like the Court, at
heart, deals with people their rights, their liberties, their
property, their disputes and grievances, and their means of
redress and resolution. There is not a single case which conies to
the Court which, in some manner, does not involve or affect
people.
My point, is a simple one and it is one that underscores the
importance of the position, Judge Bork, to which you've been
nominated. Judicial opinions, rendered in real cases and
controversies involve real people, and thus have actual
consequences:
81
o They determine where, and with whom, people may live, and
the legal limits of permissible activity in which people may
engage;
o They determine where, and with whom, children may go to
school; what textbooks they may use; and what, if any,
prayers they may pray;
o They determine the rights of people to be secure in their
homes, properties and thoroughfares the rights of all
persons to enjoy the fruits of their toil and the pursuit of
happiness;
o They determine the rights of victims and the rights of the
accused;
o They determine delicate questions of personal privacy;
o They also determine what books we may read, what movies we
may see, and, by result though not intent, what stories the
press may cover and how they may cover them;
These hearings, then, are about justice -- about the rights
of individuals and the rights of society as a whole. In essence
equality under the law. The question then, for us, is whether the
ends of justice will be further served, or disserved, by our vote,
for or against confirmation.
Let us be intellectually honest with ourselves, and with the
American people. Let us put on the table, get out in the open,
those things we hear, those a]legations made in the media and in
the letters, telegrams, and phone calls we receive. Let us air
all the arguments, pro and con, about this nominee.
We are told by some that Judge Bork is a brilliant man, an
erudite scholar, whose credentials, experience, and fundamental
integrity are beyond question.

82
We are told by others that Judge Bork is intolerant and that
he will personally be responsible for the Courts rolling back the
clock on advances in the areas of individual rights, racial
progress, and personal privacy.
We are told by some that Judge Bork will strictly construe
the Constitution eschewing activism, and interpreting the law,
not substituting his personal opinion for what the law should be.
We are told by others that Judge Bork is an extremist, an
ideologue of the first order, a legal zealot who will use his
position on the Court to advance a far right radical judicial
agenda.
We are told that President Reagan is entitled to have his
nominees confirmed unless they are incompetent or dishonest.
We are told by others, however, that President Reagan made
his choice on the basis of ideology, which some contend is an
impermissible criterion. Still others say if ideology is a
permissible criterion for the President, then it is a permissible
factor for the Senate to consider in evaluating this nomination.
To all Judge Bork's sponsors and supporters, I say come
forward. Let us have the evidence about competence, tolerance,
and fairness.
To all Judge Bork's critics and detractors, I likewise say
come forward. Let us have the evidence of incompetence,
intolerance and unfairness.
While the hearing process should be comprehensive and
complete, there Is, nevertheless, one area of inquiry which should
be approached with caution that is the area of the nominee's
religious beliefs.
83
There are those who charge that Judge Bork is an agnostic or
a non-believer. These critics contend that such beliefs will
affect the opinions of the courts and hence, our churches, our
synagogues and, ultimately, our lives- While voicing concern
about the propriety of a religious test, some critics contend,
nevertheless, that this is a legitimate area of inquiry. For in
determining the fitness of a nominee, they argue, one must lo"ok to
the total man his reasoning process and the reaches of his
values and views.
However, let me remind my colleagues that clause three of
article sii of the Constitution of the United States clearly
provides that "no religious test shall fee required as a
qualification to any office or public trust under the United
States."
This clause, as well as the spirit of the freedom of religion
clause tn the First Amendment, should be observed in pursuing any
inquiry, whether it be legitimate or not, as to one's personal
religious feelings.
I can say, with great conviction three things:
o Judicial activism of the righ is to be dreaded, surely, as

much as activism of the left;
o violence to the principle of stare decisis in a
results-oriented rush to a pra-determined outcome is to be
feared, surely, as much as violence in the streets;
o an ideological predisposition, or, worse, commitment, to

roll back the clock on individual equality, and personal
liberties is abhorrent to our now fundamental precepts of a
fair and just society.
Judge Bork:
If the Senate is convinced that you will balance society's

84
need for law and order with individual rights and personal
freedoms; that your jurisprudence is deferential to elected
bodies; and that you do not have a proclivity for activism then
your confirmation chances are enhanced.
However, if the evidence shows, that you are intelligent, but
an ideologue a zealot; that you are principled, but prejudiced;
that you are competent, but closed-minded -- then there is
considerable doubt as to whether you will be confirmed by the
Senate.
Having said all these things, we do not, at this stege, know
what the evidence will adduce. Therefore, to all my colleagues,
and to our respective constituents, I say let us not prejudge.
Let us hear the evidence, analyze it, weigh it. I have spoken of
feared and dreaded judicial maladies, but the worst judicial or
legislative disease is a closed mind.
In determining the fitness of this nominee let no mind be
closed by either blind party allegiance or rigid ideological
adherence. Let no Senator approach these hearings with anything
less than an awesome sense of responsibility to do what is right
in his or her own mind. We each must follow the mandates of our
own conscience.
A vote to confirm or not to confirm this nominee is more than
jusJt_a..vote. It is a reaffirmation of our commitment to the
constitution, to equality, to liberty, to justice.
Let the hearing process begin.

Let the record be made.
Let fairness prevail.
Let justice be done.

85

The Senator from New Hampshire, Senator Humphrey.
OPENING STATEMENT OF SENATOR GORDON J. HUMPHREY
Senator HUMPHREY. Thank you, Mr. Chairman.
Before leaving New Hampshire last night, I was interviewed by a
television reporter on the Bork nomination, and the reporter asked
me a number of questions. One of those questions, notwithstanding
the seriousness of these hearings, made me laugh. It was this ques*
tion:
"Senator, has the Bork nomination gotten wrapped up in poli-
tics?" Boy, has it ever. I have been around this city for 9 years, and
the charges against Judge Bork are the worst infestation of politics
this Senator has ever seen.
How else can you explain the fact that 5 years ago the U.S.
Senate unanimously confirmed Robert Bork, this very man, to the
second most important court in the nation; and now in 1987, 5
years later, some Senators are acting like they have amnesia about
their own voting records. So it is either amnesia, it seems to me, or
it is politics. It has got to be one or the other.
Then there are some special interest groups with their loathing
for a man who believes in judicial restraint fearful of a judge who
believes controversial questions ought to be left to democratically
elected legislatures except where there is a violation of clear mean-
ing of the Constitution. To listen to some of these groups, you get
the impression that Judge Bork is an extremist, a racist, a sexist;
indeed, an archenemy of the Constitution.
The funny thing about this alleged extremist. He's a judge. This
fellow Bork is already a federal judge, a high judge, a judge on the
Circuit Court of Appeals for the District of Columbia. Most ex-
pertsand there are certainly a lot of them when it comes to the
lawmost experts regard that court as the second most important
in the nation, second only to the Supreme Court in its importance.
This fellow Bork, this embodiment of evilif you believe some of
his criticsis a very high judge. And guess who confirmed him
judge to the second most important court in the country? The
Senate of the United States, that is who. We did it. We made
Robert Bork a judge 5 years ago by a unanimous vote; not a nega-
tive vote among them.
So the question I have is this: If Robert Bork is the archenemy of
the Constitution, alleged by his critics, if he is an extremist, a
racist, a sexist, then where in the world were all of the U.S. Sena-
tors who voted to confirm him 5 years ago to the D.C. Circuit Court
of Appeals? Were they asleep? Were they hallucinating? Were they
not paying attention? Were they irresponsible? Didn't they care?
Or are they just a bunch of racists and extremists themselves?
I say to those who have raised vicious charges against Judge
Bork, come off it, come off it. You insult not only Judge Bork but
the U.S. Senate as well. We do not in this body confirm ogres and
misfits to the Federal bench.
Now, about the nominee. The first thing I want to point out is
that Robert Bork does not need to take all this guff, and we ought
to be mighty grateful to him and to his family for their willingness
86
to submit themselves to the guttersnipe gang who have had such
play in recent weeks. Here is a man who is brilliant. He attended
the University of Chicago Law School, elected Phi Beta Kappa. He
could be earning a million bucks a year easily. He had it made. He
was in with a prestigious law firm, and then he threw it all over-
board to go off to Yale Law School and teach law. Professors do not
make that much money, but he saw it as a higher calling.
Even after 11 years of teaching, he took time out for yet an even
higher calling, serving as Solicitor General of the United States,
the third highest office in the Justice Department. He served ex-
ceedingly well there under exceedingly trying circumstances. Then
back to Yale Law School for another 4 years, and then he was nom-
inated and confirmedunanimously by the U.S. Senate, let us re-
memberto the second most important court in the country, the
Circuit Court of Appeals for the District of Columbia.
There he has compiled the most remarkable and exemplary
record. Robert Bork has served his country well: two stints in the
U.S. Marine Corps to serving as a high official in the Justice De-
partment, to Federal Appeals Court judge. Robert Bork has served
this nation well, and we ought to be glad that he is willing to
devote his mind and his strength to teaching and to government
services, because with his brilliance and his credentials, he could
have been a multimillionaire by now.
The question before us is simple: Is the nominee qualified to
serve on the Supreme Court? If we were looking for the ideal nomi-
nee, we would look for someone who graduated from a prestigious
law school with high grades, as did Robert Bork. We would look for
someone who taught law at a prestigious university, as did Robert
Bork. We would look for someone who served on a circuit court of
appeals, preferably the Circuit Court for the District of Columbia,
as has Robert Bork.
If you were looking for the ideal nominee, you would look for an
experienced judge who had earned accolades from highly respect
authorities, as has Judge Bork. Accolades from whom? How about
a retired Supreme Court Justice, Chief Justice Warren Burger, who
recently saidand it bears repeating; I know others have referred
to this, including I think President Ford, but it bears repeating.
Warren Burger said, "I do not think in more than 50 years since I
was in law school there has ever been a nomination of a man or
woman any better qualified than Judge Bork," and that language
includes Warren Burger, does it not? I think that is pretty remark-
able. Savor that accolade for a moment. The best qualified nominee
in 50 years. That speaks a lot louder to this Senator than any
dozen noisy special interest groups clamoring for Robert Bork's
scalp.
Justice Burger has no axes to grind; neither does Justice John
Paul Stevens, still serving on the Supreme Court, who said, "I per-
sonally regard Judge Bork as a very well-qualified candidate and
one who will be a very welcome addition to the Court."
Bork is very well qualified, according to Justice Stevens, and
these are impressive, very impressive accolades to this Senator
unless we are prepared to dismiss Justices Burger and Stevens as
extremists, too. Burger and Stevens are not alone in their high
praise. Former President Gerald Ford was before us this morning
87
on behalf of Robert Bork; eminent Democrats as well support this
nominee, including two of the highest, most senior officials of the
Carter administration in the area of law: Lloyd Cutler, President
Carter's White House counsel, and former Attorney General Grif-
fin Bell. And they will be here to testify on behalf of the nominee,
as will five other Attorneys General of the United States.
So how has Bork earned the confidence of such highly respected
authorities? Performance, that is how. Bork's critics will focus on
his theoretical writings from as long as 25 years ago, but the real
measure of Bork as a judgenot Robert Bork as a college profes-
sor, not Robert Bork as a provocative academician probing the es-
tablishmentbut the real measure of Robert Bork as judge is his
record on the D.C. Circuit Court of Appeals. His record.
Let us look at the record. It is impeccable. The Senate acted
wisely when it unanimously confirmed this man to the bench in
1982. So sound has been his reasoning, so carefully crafted have
been his decisions that not one opinionnot a onehas been over-
turned by the Supreme Court. Robert Bork has written or joined in
over 400 such decisions since he joined the D.C. Circuit Court, and
not once has a decision been overturned by the Supreme Court on
appeal. That is very impressive to this Senator. Now, we know why
so many eminent authorities have such high praise for this judge.
Why, then, the inquisition? Why the scurrilous charges against
the man whose fitness for the bench was carefully examined by
this body before he was confirmed by a unanimous vote of the
Senate 5 years ago? Why the salvos against a judge who has com-
piled an impeccable record in his opinions?
I think I know the answer. The most extreme opposition to Judge
Bork comes from those who consider the Supreme Court, as consti-
tuted in recent times, a convenient place to sidestep the democratic
process. A judge like Robert Bork, who not only preaches the doc-
trine of judicial restraint but practices it as well, is a great incon-
venience to those who do not trust the values of the American
people. Judges like Robert Bork do not substitute their personal
views for a neutral reading of the Constitution. Judges like Robert
Bork do not act like legislators, creating new law. Instead, they act
like judges, scrupulously interpreting the intent of the framers of
the Constitution and of the democratically elected legislators here
in Congress and in the State legislatures.
We legislators ought to be grateful for that. Judge Bork does not
want to take over our turf, as do some of his brethren. I am grate-
ful. Judge Bork believes, along with many of both liberal and con-
servative persuasion, along with many present and past, that if
new rights are to be created, they ought to be created by represent-
atives of the people who are democratically elected by the people
and who are accountable to the people every 2 or 6 years as the
case may be.
Judges like Robert Bork believe that new rights ought not to be
created by judges who are elected by absolutely no one and who, in
their appointments for life, are accountable to absolutely no one. I
say long live the principle and the practice of judicial restraint.
Is Robert Bork with his judicial restraint out of the mainstream?
Over the last 5 years, he has voted with the majority in 94 percent
of the cases in which he participated. Ninety-four percent sounds
88
pretty mainstream to this Senator. Or on the other hand, perhaps
the D.C. Circuit Court is full of extremists. That is not the answer
at all because we know that among the members of that distin-
guished body are many who are liberal and many who are conserv-
ative, and about an equal number who are so-called moderates.
The record shows that Judge Bork voted with the majority 94
percent of the time. That sounds mainstream to this Senator. Re-
member Antonin Scalia? We confirmed him last year to the Su-
preme Court by a unanimous vote. There were no charges of extre-
mism against Scalia. So what? Scalia and Bork served together for
nearly 4 years on the same Court, and Bork voted with Scalia 98
percent of the time in which they both participated in cases.
Ninety-eight percent. Does that make Scalia an extremist, too? Of
course not. It means instead that these charges against Bork are
political poppycock, pure political poppycock, 99.9 percent pure, so
pure it floats.
We will have a good review of Robert Bork's life in the next 2
weeks. This is your life, Robert Bork. And even though we have
been through all of this before and found him fit, it will be thor-
oughas it should bebut let us also make it thoroughly fair be-
cause it should be thoroughly fair as well.
I finally have to say this, that I think we have gotten off to a bit
of a rocky start by delaying these hearings a record 70 days and by
intemperate remarks and irresponsible charges by a small number
of members on this panel.
89
STATEMENT OF SENATOR GORDON J. HUMPHREY, NE" HAMPSHIRE
MR. CHAIRMAN, BEFORE LEAVING NEW HAMPSHIRE LAST NIGHT I

WAS INTERVIEWED BY A TV REPORTER ON THE BORK NOMINATION. HE
ASKED A NUMBER OF QUESTIONS, BUT ONE OF THEM MADE ME LAUGH.
HE ASKED, HAS THE BORK NOMINATION GOTTEN WRAPPED UP IN
POLITICS? BOY, HAS IT EVER. I'VE BEEN AROUND THIS LUNATIC
TOWN FOR NINE YEARS, AND THE CHARGES AGAINST JUDGE BORK ARE
THE WORST INFESTATION OF POLITICS I HAVE SEEN. HOW ELSE CAN
YOU EXPLAIN THE FACT THAT FIVE YEARS AGO, THE UNITED STATES
SENATE UNANIMOUSLY CONFIRMED ROBERT BORK TO THE SECOND MOST
IMPORTANT COURT IN THE LAND, AND NOW, SOME SENATORS ARE
ACTING LIKE THEY HAVE AMNESIA ABOUT THEIR OWN VOTING RECORD.
EITHER IT'S AMNESIA OR IT'S POLITICS.
THEN THERE ARE THE SPECIAL INTEREST GROUPS, RABID WITH

THEIR LOATHING OF A MAN WHO BELIEVES IN JUDICIAL RESTRAINT.
FEARFUL OF A JUDGE WHO BELIEVES CONTROVERSIAL QUESTIONS OUGHT
TO BE LEFT TO DEMOCRATICALLY ELECTED LEGISLATURES, EXCEPT
WHERE THERE IS A VIOLATION OF THE CLEAR MEANING OF THE
CONSTITUTION. TO LISTEN TO SOME OF THESE GROUPS, YOU GET THE
IMPRESSION THAT JUDGE ROBERT BORK IS AN EXTREMIST, A RACIST,
A SEXIST, AND AN ARCH-ENEMY OF THE CONSTITUTION.
FUNNY THING ABOUT THIS ALLEGED EXTREMIST, RACIST, SEXIST

ARCH-ENEMY OF THE CONSTITUTION, HE'S A JUDGE. THIS FELLOW
BORK IS ALREADY A FEDERAL JUDGE. A HIGH UP JUDGE. HE'S A
JUDGE ON THE CIRCUIT COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA. MOST EXPERTS A N D THERE ARE A LOT OF THEM WHEN IT
COMES TO THE LAW REGARD THAT COURT AS THE SECOND MOST
IMPORTANT COURT IN AMERICA. SO THIS FELLOW BORK, THIS
EMBODIMENT OF EVIL, IF YOU BELIEVE SOME OF HIS CRITICS, IS A
VERY HIGH UP JUDGE. AND GUESS WHO CONFIRMED HIM AS A JUDGE
ON THE SECOND MOST IMPORTANT COURT IN THE LAND? THE SENATE
OF THE UNITED STATES OF AMERICA. THAT'S WHO. WE DID IT.
YES, WE MADE ROBERT BORK A JUDGE. FIVE YEARS AGO. BY A

UNANIMOUS VOTE. NO NEGATIVE VOTES. SO THE QUESTION I HAVE,
MR. CHAIRMAN IS THIS: IF ROBERT BORK IS THE ARCH-ENEMY OF
THE CONSTITUTION ALLEGED BY HIS CRITICS, IF HE'S AN
EXTREMIST, A RACIST, AND A SEXIST, THEN WHERE IN THE WORLD
WERE ALL THE UNITED STATES SENATORS IN 1982, WHEN THEY VOTED
UNANIMOUSLY TO CONFIRM HIM? WERE THEY ASLEEP? WERE THEY
DRUNK? WERE THEY CARELESS? WERE THEY NOT PAYING ATTENTION?
WE'RE THEY IRRESPONSIBLE? DIDN'T THEY CARE? OR WERE THEY
JUST A BUNCH OF RACISTS AND SEXISTS THEMSELVES?
I SAY TO THOSE WHO HAVE RAISED VICIOUS CHARGES AGAINST

JUDGE BORK, COME OFF IT! COME OFF IT, YOU INSULT NOT ONLY
ROBERT BORK AND HIS FAMILY. YOU INSULT THE SENATE OF THE
UNITED STATES. WE DON'T CONFIRM OGRES AND MISFITS TO THE
FEDERAL BENCH.
NOW, ABOUT THE NOMINEE, MR. CHAIRMAN. THE FIRST THING I
WANT TO POINT OUT IS, ROBERT BORK DOESN'T NEED TO TAKE ALL
THIS GUFF, AND WE OUGHT TO BE MIGHTY GRATEFUL HE'S WILLING TO
SUBMIT HIMSELF AND HIS FAMILY TO THE GUTTERSNIPE GANG.
HERE'S A MAN WHO'S BRILLIANT, ATTENDED THE UNIVERSITY OF
CHICAGO LAW SCHOOL, ELECTED TO PHI BETA KAPPA. HE COULD BE
EARNING A MILLION BUCKS A YEAR, EASILY. HE HAD IT MADE. WAS
WORKING FOR A PRESTIGIOUS LAW FIRM, AND THEN THREW IT ALL
OVERBOARD TO GO AND TEACH AT YALE LAW SCHOOL. PROFESSORS
DON'T MAKE THAT MUCH MONEY. BUT HE SAW IT AS A HIGHER
CALLING.
AFTER ELEVEN YEARS TEACHING AT YALE, HE TOOK TIME OUT
FOR YET AN EVEN HIGHER CALLING, SERVING AS SOLICITOR GENERAL
OF THE UNITED STATES, THE THIRD HIGHEST OFFICE IN THE JUSTICE
DEPARTMENT. DIDN'T MAKE MUCH MONEY THERE EITHER. THEN BACK
TO TEACHING AT YALE LAW SCHOOL FOR ANOTHER FOUR YEARS. THEN
HE WAS NOMINATED AND CONFIRMED UNANIMOUSLY BY THE UNITED
STATES SENATE TO THE SECOND MOST IMPORTANT COURT IN THE
90
LAND, THE CIRCUIT COURT OF APPEALS FOR THK DISTRICT OF

COLUMBIA, WHERE HE HAS COMPILED A REMARKABLE AND EXEMPLARY
RECORD. AND JUDGES DON'T MAKE MUCH MONEY EITHER. BUT, THEN,
TO ROBERT BORK, THERE ARE MORE IMPORTANT THINGS THAN MONEY.
HE'S SERVED HIS COUNTRY WELL, FROM SEVERAL YEARS IN THE

MARINE CORPS, TO SERVING AS A HIGH OFFICIAL IN THE JUSTICE
DEPARTMENT, TO FEDERAL APPEALS COURT JUDGE. ROBERT BORK HAS
SERVED HIS COUNTRY WELL. AND WE OUGHT TO BE GLAD HE'S BEEN
WILLING TO DEVOTE HIS MIND TO TEACHING AND TO GOVERNMENT
SERVICE, BECAUSE WITH HIS BRILLIANCE AND HIS CREDENTIALS HE
COULD HAVE BEEN A MULTI-MILLIONAIRE BY NOW.
THE QUESTION BEFORE US IS SIMPLE: IS THE NOMINEE

QUALIFIED TO SERVE ON THE SUPREME COURT? IF YOU WERE LOOKING
FOR THE IDEAL NOMINEE, YOU'D LOOK FOR SOMEONE WHO GRADUATED
FROM ONE OF THE BEST LAW SCHOOLS, WITH HIGH GRADES, AS DID
ROBERT BORK. YOU'D LOOK FOR SOMEONE WHO TAUGHT LAW IN ONE OF
THE PRESTIGE UNIVERSITIES, AS DID ROBERT BORK. YOU'D LOOK
FOR SOMEONE WHO SERVED ON A CIRCUIT COURT OF APPEALS,
PREFERABLY THE CIRCUIT COURT FOR THE DISTRICT OF COLUMBIA, AS
DID ROBERT RORK.
IF YOU WERE LOOKING FOR THE IDEAL NOMINEE, YOU'D LOOK

FOR AN EXPERIENCED JUDGE WHO HAD EARNED ACCOLADES FROM HIGHLY
RESPECTED AUTHORITIES, AS HAS ROBERT BORK. ACCOLADES FROM
WHOM? HOW ABOUT A RETIRED SUPREME COURT CHIEF JUSTICE?
WARREN BURGER RECENTLY SAID, "I DON'T THINK IN MORE THAN
FIFTY YEARS SINCE I WAS IN LAW SCHOOL THERE HAS EVER BEEN A
NOMINATION OF A MAN OR WOMAN ANY BETTER QUALIFIED THAN JUDGE
BORK."
SAVOR THAT ACCOLADE FOR A MOMENT. THE BEST QUALIFIED

NOMINEE IN FIFTY YEARS. THAT SPEAKS A LOT LOUDER TO THIS
SENATOR THAN ANY DOZEN NOISY SPECIAL INTEREST GROUPS
CLAMORING FOR ROBERT BORK'S SCALP. CHIEF JUSTICE WARREN
BURGER HAS NO AXES TO GRIND. NEITHER DOES JUSTICE JOHN PAUL
STEVENS, STILL SERVING ON THE SUPREME COURT, WHO SAID, "I
PERSONALLY REGARD (JUDGE 30RK) AS A VERY WELL-QUALIFIED
CANDIDATE AND ONE WHO WILL BE A VERY WELCOME ADDITION TO THE
COURT." BORK IS VKRY WELL-QUALIFIED , ACCORDING TO JUSTICE
STKVENS. THESE ARE VERY IMPRESSIVE ACCOLADES UNLESS WE'RE
PREPARED TO DISMISS JUSTICES BURGER AND STEVENS AS
EXTREMISTS, TOO.
BURGER AND STEVENS ARE NOT ALONE IN THEIR HIGH PRAISE.

FORMER PRESIDENT GERALD FORD IS HERE ON BEHALF OF ROBERT
BORK. EMINENT DEMOCRATS SUPPORT ROBERT BORK. THE TWO MOST
SENIOR LEGAL OFFICIALS IN IN THE CARTER ADMINISTRATION,
FORMER WHITE HOUSE COUNSEL LLOYD CUTLER AND FORMER ATTORNEY
GENERAL GRIFFIN BELL ARE HERE TO SUPPORT ROBERT BORK. AND SO
ARE FIVE OTHER FORMER ATTORNEYS GENERAL.
HOW HAS BORK EARNED THE CONFIDENCE OF SUCH HIGHLY

RESPECTED AUTHORITIES? PERFORMANCE, THAT'S HOW. BORK'S
CRITICS WILL FOCUS ON HIS THEORETICAL WRITINGS FROM AS LONG
AGO AS TWENTY-FIVE YEARS. RUT THK REAL MEASURE OF ROBERT
BORK AS A JUDGE NOT ROBERT BORK AS COLLEGE PROFESSOR, NOT
ROBERT BORK AS PROVOCATIVE ACADEMICIAN, PRORING THE
ESTABLISHMENT IS HIS RECORD ON THE D. C. CIRCUIT COURT.
HIS RECORD. LET'S LOOK AT HIS RECORD. IT'S IMPECCABLE.
THE SENATE ACTED WISELY WHEN IT UNANIMOUSLY CONFIRMED

ROBERT BORK TO THE BENCH It] 1982. SO SOUND HAS BEEN HIS
REASONING, SO CAREFULLY CRAFTED HAVE BEEN HIS DECISIONS, THAT
NOT ONE OPINION WHICH HE WROTE OR IN WHICH HE JOINED HAS BEEN
OVERTURNED BY THE SUPREME COURT NOT ONE. ROBERT BORK HAS
WRITTEN OR JOINED IN OVER FOUR HUNDRED DECISIONS SINCE HE
JOINED THE DC CIRCUIT COURT, AND NOT ONCE HAS SUCH A DECISION
BEEN OVERRULED BY THE SUPREME COURT ON APPEAL. THAT'S VERY,
VERY IMPRESSIVE. MOW WE KNOW WHY SO MANY EMINENT AUTHORITIES
HAVE SUCH HIGH PRAISE FOR BORK.
91
WHY, THEN, THE INQUISITION? WHY THE SCURRILOUS CHARGES

AGAINST A HAN WHOSE FITNESS FOR THE BENCH WAS CAREFULLY
EXAMINED BY THE SENATE BEFORE HE WAS CONFIRMED BY UNANIMOUS
VOTE OF THE SENATE FIVE YEARS AGO? WHY THE SALVOS OF
AGAINST A JUDGE WHO HAS COMPILED AN IMPECCABLE RECORD IN HIS
OPINIONS.
WE KNOW THE ANSWER. THE MOST EXTREME OPPOSITION TO

JUDGE BORK COMES FROM THOSE WHO CONSIDER THE SUPREME COURT,
AS CONSTITUTED IN RECENT TIMES, A CONVENIENT PLACE TO
SIDESTEP THE DEMOCRATIC PROCESS. A JUDGE LIKE ROBERT BORK,
WHO NO1 ONLY PREACHES THE DOCTRINE OF JUDICIAL RESTRAINT, BUT
PRACTICES IT AS WELL, IS A GREAT INCONVENIENCE TO THOSE WHO
DON'T TRUST THE VALUES OF THE AMERICAN PEOPLE. JUDGES LIKE
ROBERT BORK DO NOT SUBSTITUTE THEIR PERSONAL VIEWS FOR A
NEUTRAL READING OF THE CONSTITUTION. JUDGES LIKE ROBERT BORK
DO NOT ACT LIKE LEGISLATORS, CREATING NEW LAW. INSTEAD, THEY
ACT LIKE JUDGES, SCRUPULOUSLY INTERPRETING THE INTENT OF THE
FRAMERS OF THE CONSTITUTION AND OF THE DEMOCRATICALLY ELECTED
LEGISLATORS IN CONGRESS AND THE STATES LEGISLATURES. WE
LEGISLATORS OUGHT TO BE GRATEFUL FOR THAT. JUDGE BORK
DOESN'T WANT TO TAKE OVER OUR TURF, AS DO SOME OF HIS
BRETHREN.
JUDGE BORK BELIEVES, ALONG WITH MANY, OF BOTH LIBERAL

AND CONSERVATIVE PERSUASION, ALONG WITH MANY PRESENT AND
PAST, THAT IF NEW RIGHTS ARE TO BE CREATED, THEY OUGHT TO BE
CREATED BY REPRESENTATIVES OF THE PEOPLE WHO ARE
DEMOCRATICALLY ELECTED BY THE PEOPLE AND WHO ARE ACCOUNTABLE
TO THE PEOPLE EVERY TWO YEARS OR SIX YEARS, AS THE CASE MAY
BE. JUDGES LIKE ROBERT BORK BELIEVE THAT NEW RIGHTS OUGHT
NOT BE CREATED BY JUDGES, WHO ARE ELECTED BY ABSOLUTELY NO
ONE AND WHO, IN THEIR APPOINTMENTS-FOR-LIFE, ARE ACCOUNTABLE
TO ABSOLUTELY NO ONE. I SAY LONG LIVE THE PRACTICE OF
JUDICIAL RESTRAINT.
IS ROBERT BORK, WITH HIS JUDICIAL RESTRAINT, OUT OF THE

MAINSTREAM? NOT ON THE D. C. CIRCUIT COURT OF APPEALS. OVER
THE LAST FIVE YEARS HE'S VOTED WITH THE MAJORITY IN 94
PERCENT OF THE CASES IN WHICH HE PARTICIPATED. 94 PERCENT.
THAT SOUNDS PRETTY MAINSTREAM TO ME. OR IS THE D. C. CIRCUIT
FULL OF EXTREMISTS? OF COURSE NOT. AND REMEMBER, THAT COURT
IS STILL VERY LIBERAL IN ITS MAKEUP. THE RECORD SHOWS JUDGE
BORK VOTED WITH THE MAJORITY 94 PERCENT OF THE TIME.
REMEMBER ANTONIN SCALIA? WE CONFIRMED HIM LAST YEAR TO

T"E SUPREME COHPT RV A UNANIMOUS VOTE. THERE WERE NO CHARGES
OF EXTREMISM AGrtJ*'"7 SC-. .J.A. SO WHAT? -CAJ.IA M>>S SCI1'
? P - ,,- TOGETHER FOR 4 YEARS Gil THE r. 2. CIRCUIT, AND BORK
VOTED WITH SCALIA IN 98 PERCENT OF THE CASES IN WHICH THEY
BOTH PARTICIPATED. 98 PERCENT. DOES THAT MAKE SCALIA AN
EXTREMIST, TOO? OF COURSE NOT. IT MEANS INSTEAD, THESE
CHARGES AGAINST BORK ARE POLITICAL POPPYCOCK. POLITICAL
POPPYCOCK THAT IS 99.9 PERCENT PURE. SUCH PURE POPPYCOCK IT
FLOATS.
WE'LL HAVE A GOOD REVIEW OF ROBERT BORK'S LIFE DURING

THF NEXT TITO WEEKS, "VEN THOUGH WE'VE BEEN THROUGH ALL THIS
BEFORE WITH BORK AND FOUND HIM FIT. IT'LL BE THOROUGH AS IT
SHOULD BE. BUT LET'S ALSO MAKE IT THOROUGHLY FAIR, BECAUSE
THAT'S THE WAY IT SHOULD BE, TOO. I'D HAVE TO SAY, WE'VE
GOTTEN OFF TO A BAD START BY DELAYING THESE HEARINGS A RECORD
SEVENTY DAYS.
92
The CHAIRMAN. Thank you, Senator. Last but surely not least,
Senator Simon, before you begin, let me suggest that I would ap-
preciate the cooperation of the audience. We have one chore to do
immediately after the statement. What we are going to do is go
into executive session. If you would all just sit for 30 seconds while
we get the nomination of Judge Sessions out to be FBI Director, I
would truly appreciate it. If not, that police officer will shoot you
on sight if you stand up. [Laughter.] That is a joke. I am only kid-
ding.
The Senator from Illinois.
OPENING STATEMENT OF SENATOR PAUL SIMON
Senator SIMON. Thank you, Mr. Chairman.
Judge Bork, we welcome you and your family. It has been said,
accurately, that what we are about to decide is going to have a
great impact on this nation well into the next century. I would
differ with my colleague, Senator Humphrey, on one point. I did
not happen to be here when you were approved for the circuit
court of appeals. I can very well visualized voting for someone for
the circuit court of appeals, but not for the Supreme Court, because
here you are really setting the course for the nation.
Over at that building not too many feet from here are the four
words "Equal Justice Under Law." I want them to be much more
than simply words chiseled on stone. And I say this as a non-
lawyer member of this panel. I want those words to live, and I
want the Supreme Court Justices to make them live.
I know there are a few, very few, out there who write to me or
who contact us and say let us just keep postponing so President
Reagan cannot make an appointment. President Reagan was elect-
ed. He is entitled to nominate whomever he wishes, and we have
the equal responsibility of weighing that nomination. I expect
President Reagan to nominate a conservative. Justice Powell is a
conservative. Six of the eight members of the Court sitting right
now have been appointed by Republican Presidents, the majority
approved by Democratic members of the Senate.
I do not find the question quite as simple as some do. I think
there are several questions that we have to ask ourselves and that
I will be asking myself during the course of your testimony. First,
is the nominee open-minded and fair? Your job is not simply to
render justice, but also to symbolize justice for the people of this
nation.
I want to make sure that really takes place, both the symbolic
role and the rendering of justice. I do not want someone with an
ideological mission of either the right or the left.
Second, I want a nominee who is sensitive to civil rights. I am 58
years old. I have seen huge progress made in this nation. Not that
we do not have a long way to go yet, but much of that progress has
been because of the Supreme Court, nine people who sit in that
building over there. I want someone who is willing to lead on civil
rights, not simply someone who will be dragging his feet.
Third, I want someone sensitive to civil liberties. Freedom is
much easier to give away than to protect. I want someone who is
going to preserve our freedom, who is willing to stand up, if neces-
93
sary, against public opinion. Public opinion sometimes can be dra-
matically wrong. I think of the decision in 1942 on the internment
of Japanese-Americans. The Supreme Court knuckled under to
public opinion. I want someone who is going to protect the civil lib-
erties of Japanese-Americans, of all Americans, whatever their
background.
I want someone who is going to protect the people of this nation
against the abuse of power by government, and we know from ex-
perience in our country and in other countries that government
can abuse that power.
I want someone who is sensitive to our traditions of separation of
church and State. My father was a Lutheran minister. I have an
understanding of the yearnings that people have for values in our
society, and I want to preserve those values. But I also recognize
there are things that government can do well, like providing stu-
dent aid. At the same time there are things that government
cannot do well. One of things is to promote religion. I want to
make sure the nominee is sensitive to our traditions.
Then, finally, I want someone who has some compassion. I do not
expect your heart to overrule your head, but there will be marginal
cases that a Supreme Court Justice will have to rule on. And I
want a Supreme Court Justice who cares about people, just as I
want a government that cares about people.
That sounds like a tall order, those requirements, but I think
there are people, conservatives and liberals, Democrats and Repub-
licans, who meet that. I want the letter of the Constitution to be
followed, but I also want the spirit of the Constitution to be fol-
lowed.
Dennis DeConcini, my colleague from Arizona, in his remarks
perhaps summarized it best. He said a few minute ago, "The ulti-
mate question I must decide is whether I feel secure putting our
individual liberty, freedoms, and the future of our country in his
hands." That is an awesome responsibility on our part and on the
part of whoever goes to that Court.
The CHAIRMAN. Thank you very much.
[Whereupon, at 1:09 p.m., the committee recessed, to reconvene
at 2:30 p.m., the same day.]
AFTERNOON SESSION
The CHAIRMAN. Judge, welcome back. The committee will come

to order.
Judge, I think quite frankly it might accommodate our brethren
between us here if we went slightly out of order here. I am going to
ask you to be sworn in now before I give my statement, but after
you are sworn I will give the statement.
Judge, do you swear to give at this hearing in response to ques-
tions the truth, the whole truth and nothing but the truth so help
you God?
Judge BORK. I do, Mr. Chairman.
The CHAIRMAN. Thank you. You are duly sworn.
Judge Bork, I would like to make an opening statement if I may.
94
OPENING STATEMENT OF CHAIRMAN JOSEPH R. BIDEN, JR.
I would like to welcome you back this afternoon and personally
welcome you to the Senate Judiciary Committee. You have heard
much todayand we have all heard a great deal todayabout the
bicentennial of our Constitution. But as you and I both know, the
convention in Philadelphia was only one very important chapter in
the history of our people and in the evolution of our unique form of
government.
From that day in Philadelphia to this hour, the heart of the con-
troversy over the Constitution has been ever the basic question
that is certain to animate the debate that may commence in this
committee, and that is the debate about the tensions between the
rights of an individual and the will of the majority.
As James Madison, the father of the Constitution said, and I
quote: "The great object of the Constitution is to secure the public
good and private right against the danger of the majority faction
and at the same time to preserve the spirit and the form of popular
government," end of quote.
Judge, the seasons have turned to centuries and the document
we now celebrate, the world's longest and oldest living constitution,
for over the past 200 years, is something that we will formally cele-
brate tomorrow. And for 200 years each generation of Americans
has been called to nurture, defend it, define it and apply it.
Senator Sam Ervin, our late colleague from North Carolina, was
fond of reminding all of us and quoting an eloquent educator about
the ties between t}ie Magna Carta, the English Petition of Rights,
the Declaration of Independence, and the U.S. Constitution.
The quote he used to always use was this: "These are great docu-
ments of history. Cut them and they will bleed, bleed with the
blood of those who fashioned them and those who nurtured them
through the succeeding generations."
Judge, each generation in some sense has had as much to do to
author our Constitution as the 39 men who affixed their signatures
to it 200 years ago. Indeed, 2 years after its signing, following a
bitter national debate over its ratification, at the insistence of the
people, the Constitution was profoundly ennobled by the addition
of what has come to be known as the Bill of Rights.
Before a hundred years would transpire, a civil war erupted over
the meaning of that Constitution and that so-called bill of rights, a
civil war which would answer Lincoln's question whether, quote,
"any nation so conceived and so dedicated can long endure."
From that civil war would emerge the so-called Civil War
Amendments which would settle forever the truth that all men are
created equal. It gave definition through those Civil War Amend-
ments to what many thought were meant in the first instance. But
before another 100 years would pass our own century would be dis-
tinguished by hotly contested struggles to assimilate into the very
fabric of the Constitution equal protection for blacks, minorities
and women.
As surely as those who waged the Civil War, those who waged
the struggle for civil rights infused the Constitution with their own
vision. The story of these struggles at its heart, in my view, is the
story of what makes America and her people the envy of the world.
In each of these struggles which I have made reference to, each of
these struggles in each of these times when the individual faced a
95
recalcitrant government, the individual won his or her rights,
always expanding; his or her rights always expanding.
America is the promised land because each generation be-
queathed to their children a promise, a promise that they might
not come to enjoy but which they fully expected their offspring to
fulfill. So the words "all men are created equal" took a life of their
own, ultimately destined to end slavery and enfranchise women.
And the words, "equal protection and due process" inevitably led
to the end of the words, "separate but equal," ensuring that the
walls of segregation would crumble, whether at the lunch counter
or in the voting booth.
So, faithful to that tradition, in the ebbing summer of our bicen-
tennial, the Constitution must become more than an object of cele-
bration. It is to become once again the center of a critical national
debate over what it is, what it must become, and how it will be ap-
plied in a world that neither you nor I can envision at this
moment, a world of biotechnical engineering, a world of burgeoning
changes in science, a world where once again the rights of individ-
uals and the right of the government to impact upon them will be
put in a different context and in conflict.
So let's make no mistake about it, the unique importance of this
nomination is in part because of the moment in history in which it
comes, for I believe that a greater question transcends the issue of
this nomination. And that question is, will we retreat from our tra-
dition of progress or will we move forward, continuing to expand
and envelope the rights of individuals in a changing world which is
bound to have an impact upon those individuals' sense of who they
are and what they can do, will these ennobling human rights and
human dignity, which is a legacy of the past two centuries, contin-
ue to mark the journey of our people?
So Judge, as you well know, this is no ordinary nomination, not
merely because you are there. And I must say to you that it must
be somewhat daunting, as experienced as you are, to sit there with
an array of people here about to question you. It is not an easy po-
sition to be in. I am confidentand I am not being solicitousyou
will handle it well, but nonetheless, it is not an easy position.
But this nomination is morewith all due respect, Judge, and I
am sure you would agreethan about you. In passing on this nomi-
nation to the Supreme Court, we must also pass judgment on
whether or not your particular philosophy is an appropriate one at
this time in our history.
You are no ordinary nominee, Judge, to your great credit. Over
more than a quarter of a century you have been recognized as a
leadingperhaps the leadingproponent of a provocative constitu-
tional philosophy, one that when I was in law schoolI did not go
to Yale; I am not bragging about that but I did not go to Yaleone
where our constitutional law professor would say, "and this is such
and such," and then, "as Professor Bork at Yale says."
You have been a man of significant standing in the academic
community and thus in a special way, a vote to confirm you re-
quires, in my view, an endorsement of your basic philosophic views
as they relate to the Constitution. And thus the Senate, in exercis-
ing its constitutional role of advice and consent, has not only the
right in my opinion but the duty to weigh the philosophy of the
96
nominee as it reaches its own independent decision, a view that I
think you share, but I will ask you about that in the question and
answer period.
Essentially, the role of this committee as I see it is to provide an
opportunity for your advocates and your adversaries, your oppo-
nents, the opponents of this nomination and the supporters of this
nomination, to present their views for consideration as they come
to the witness table at which you sit.
But most of all, it is an important opportunity and it is a re-
quired opportunityand I and my colleagues assure you of the op-
portunityto fully offer your views and for members to question
you on what you mean by the views that you hold.
My role as Chairman of the Senate Judiciary Committee in my
view is not to persuade but to attempt to ensure that the critical
issues involved in this nomination are laid squarely before my col-
leagues and the American people.
As I made clear when Senator Baker contacted me and when At-
torney General Meese came to see me prior to your selection, as I
told them privately, Judge, that as a matter of principle I contin-
ued to be deeply troubled by many of the things you had written. I
would have been less than honest then or now to pretend other-
wise.
Judge, assuming you mean what you have written, our differ-
ences are not personal, they relate to basic questions of principle. I
will question you in several areas to determine what our differ-
ences mean in terms of real cases with real people, with real win-
ners and real losers.
For example, my areas of concern touch the relationship of
people of different races in our land; whether it was wrong for
State courts to enforce covenants that prohibited black couples
from buying homes in white neighborhoods; whether the court was
wrong in not stopping the U.S. Congress from outlawing literacy
tests to protect voting rights; and whether in the future as similar
situations arise the Court will intervene to protect the rights of the
races in this land.
I also touch on the basic right of privacy, privacy in our mar-
riages and in raising our children; whether the government can
prohibit a child from going to a private school; whether the govern-
ment can prohibit parents from having their children taught a for-
eign language; whether anyone can be subjected to sterilization, be
it the government of Oklahoma attempting to forcibly sterilize a
thief or by a big business which forces a woman to choose between
her job and her right to bear children; or whether the government
can prohibit a married couple from using birth control; or whether
in the future as populations grow and explode, whether the govern-
ment can say, you may only have two children.
I also touch on the right of free expression, be it politicalfor
example, whether Martin Luther King could have been prohibited
from advocating violation of immoral segregation lawsor be it ar-
tistic; for example, can an American be denied the right to create
and enjoy literature, painting, sculpture, dance, music, and movies
of their choice.
I not only think it was wrong for some of these things to have
happened in our countryand they didbut it was also right for
97
the Supreme Court, in my view, to have stepped in in many of the
cases that I made reference to without naming them when it did to
protect these rights of individuals against the majority.
From much of what I have readand I honestly believe, Judge, I
think I have read everything that you have written, and you have
been very cooperative. We asked you to provide it and you have lit-
erally provided us hundreds of pages of written material. Based on
that material, we appear to disagree about whether the Supreme
Court was right or wrong in many of these cases. While there is
plenty of room for debate about these issues, each of us must take
a stand on whether or not we believe the Court was wrong in these
most critical decisions of our time.
I believe all Americans are born with certain inalienable rights.
As a child of God, I believe my rights are not derived from the Con-
stitution. My rights are not derived from any government. My
rights are not denied from any majority. My rights are because I
exist. They were given to me and each of my fellow citizens by our
creator and they represent the essence of human dignity.
I agree with Justice Harlan, the most conservative jurist and
Justice of our era, who stated that the Constitution is, quote, "a
living thing" and that "its protections are enshrined in majestic
phrases like 'equal protection under the law 'and 'due process' and
thus cannot be," as he said, and I quote, "reduced to any formula,"
end of quote.
It is, as the great Chief Justice John Marshall said, and I quote,
"intended to endure for ages to come and consequently to be adopted
to the various crises of human affairs, only its great outlines
marked," end of quote.
For the next 2 weeks or so, obviously only in your case, I hope,
Judge, for the next couple of days or so, my colleagues and I, your-
self and others, will be engaged in a historic discussion that could
affect the direction of our country. I think it would be a disservice
to the American people if we allowed that day to be clouded by
strident rhetoric from the far left or the far right.
Such inflammatory statements only distract from the central
focus of these hearings. For better than two decades you have been
a distinguished scholar, a man whose ideas have been debated in
many constitutional law classes in this country. In your writings
you have forthrightly stated your principles. To use your own
words in your published opening statement, which you have not
given yet: "My philosophy of judging is neither liberal nor conserv-
ative/
When I have been askedas I have been after having read your
writings this Augustwhether I thought you were a conservative
or a liberal, my response was just as yours; I believe you are nei-
ther a conservative nor a liberal. You have a very precise, as I read
it, viewing of how to read the Constitution.
You have suggested equally forthrightly what we should examine
in reviewing your nomination when you said, and I am quoting
you: "You look for a track record, and that means you read any
article, any opinions they have written. There is no reason to be
upset about that," end of quote.
I agree with you that there is a consistent thread that runs
through your writings. You said just 2 years ago that you, quote,
98
"finally worked out a philosophy which is expressed pretty much
in that 1971 Indiana Law Journal piece," end of quote. And your
most definitive writing to date has been, as I can read it, that
piece.
Later you added, "my views have remained about what they
were."
In the end, whatever my reaction or anyone else's reaction to
your record, the process of confirmation is best served if we hear
each other out and use this unique opportunity to educate our-
selves and the American people about your record and what it may
mean for the Supreme Court and for the future of this country that
we both love very much.
Out of respect for you, out of the majesty of the Constitution and
the greatness of the American people it seems to me we who pre-
side in this hearing today owe no less.
Judge, I would now invite you, if you would like, to make any
opening statement for as long as you would like and then we will
begin with the questioning.
I thank you for your indulgence this morning in listening to all
of us.
U.S. Senator Joseph R. Blden, Jr.
Confirmation Hearing
Nomination of Robert Bork
Washington, D.C.
Teit for Distribution
OPENING STATEMENT
Judge Bork, I would like to welcome you to the Senate

Judiciary Committee.
We have heard much today about the Bicentennial of the

Constitution, but as you and I both know, the convention in
Philadelphia was only one very important chapter in the history of
our people and in the evolution of our unique government.
From that day in Philadelphia, two centuries ago, down to

this day, the heart of the controversy over the Constitution has
been over a basic question that is certain to animate the debate
we commence in this Committee the tension between the rights of
the individual and the will of the majority.
As James Madison, the Father of the Constitution, said, "The

great object [of the Constitution was] to secure the public good
and private right against the danger of [the majority] faction,
and at the same time to preserve the spirit and the form of
popular government."
The seasons have turned to centuries and the document we

celebrate is now the world's oldest living Constitution; and for
200 years, each generation of Americans has been called to
nurture, defend and define it.
Senator Sam Ervin, our late colleague, was fond of quoting an

eloquent educator about the ties between the Magna Carta, the
English Petition of Right, the Declaration of Independence and
the United States Constitution "These are the great documents
of history. Cut them, and they will bleed with the blood of those
who fashioned them and those who have nurtured them through the
succeeding generations."
Each generation, in some sense, has been as much the author

of our Constitution as were the 39 men who affixed their
signatures to it, 200 years ago.
Indeed, two years after its signing, following a bitter

national debate over its ratification, at the insistence of the
people, the Constitution was profoundly ennobled by the addition
of what we call today the "Bill of Rights."
Before a hundred years had passed, a Civil War erupted over

the meaning of the Constitution and the Bill of Rights, a civil
war which would answer Lincoln's question, whether "any nation so
conceived and so dedicated can long endure." And from that Civil
War would emerge the Civil War amendments which would once and for
all settle the question of whether "all men are created equal."
Before another hundred years would pass, our own century

would be distinguished by hotly contested struggles to assimilate
into the very fabric of the Constitution the equal protection of
blacks, other minorities, and women. And as surely as those who
waged the Civil War, those who waged the struggle for civil rights
infused the Constitution with their vision.
The story of these struggles is at its heart the story of

what makes America and her people the envy of the world in
each of these times the individual faced a recalcitrant
government, the individual won, his or her rights always
expanding.
100
America is the promised land, because each generation

bequeathed to its children a promise that it might not enjoy but
which it fully expected,their offspring to fulfill.
So the words, "all men are created equal," took on a life of

their own, ultimately destined to end slavery and enfranchise
women, and the words, "equal protection" and "due process"
inevitably led to the end of "separate but equal," ensuring that
the walls of segregation would crumble, whether at the lunch
counter or in the voting booth.
And so, faithful to that tradition, in the ebbing summer of

our Bicentennial, the Constitution must become more than the
object of celebration it is once again to become the center of
a critical national debate over what it is and what it must
become, especially on where the rights of the individual end and
the powers of the government begin.
And so let us make no mistake about the unique importance of

this nomination, at this particular moment in our history. For I
believe that a greater question transcends the issue of this
nomination. Will we retreat from our tradition of progress, or
will we go forward, ennobling human rights and human dignity,
which is the legacy of our two-century journey as a people.
So this is no ordinary nomination. In passing on this

nomination to the Supreme Court, we must also pass judgment on
whether the nominee's particular philosophy is an appropriate one
at this time in our history.
And this is no ordinary nominee. Over more than a

quarter-century, Judge Bork has been recognized as a leading,
perhaps t&S. leading proponent of a provocative constitutional
philosophy. And thus, in a special way, a vote to confirm Judge
Bork requires an endorsement of his views as well.
Thus the Senate, in exercising its constitutional role of
"advice and consent," has not only the right but the duty to weigh
philosophy as it reaches its own independent decision.
Essentially, the role of this Committee is to provide an
opportunity for advocates and opponents of the nomination to
present their views for consideration. Most of all, it is an
opportunity for the nominee to fully offer his views and for the
members to question the nominee on those views.
My role as Chairman of the Judiciary Committee is not to

persuade, but to attempt to ensure that the critical issues
involved in this nomination are laid squarely before my colleagues
and the American people.
As I made clear to the White House and the Attorney General

prior to your selection, and as I told you privately, Judge Bork,
as a matter of principle, I was and continue to be deeply troubled
by some of your views. It would be less than honest, then or now,
to pretend otherwise. Judge, our differences are not personal
they are over basic questions of principle.
I will question you in several areas to determine what our

differences mean in terms of real cases, with real people, with
real winners and losers. For example, they touch the relationship
among the people of different races in our land
whether it was wrong for the state courts to enforce a

covenant that prohibited a black couple from buying a house
in a white neighborhood;
whether the United States Congress can stop the use of

literacy tests to protect voting rights;
And they touch the basic rights of privacy in marriage and in

raising children --
101
whether the government can prohibit children from going to

private school;
whether the government can prohibit parents from having their

children taught a foreign language;
whether anyone can be subjected to sterilization,

be it by the government of Oklahoma, attempting to forcibly
sterilize a thief, or by a big business which forces a woman
to choose between her job and her right to bear children;
whether the government can prohibit a married couple from

using birth control.
And they touch the right of free expresion --
Be it political:
For example, whether Martin Luther King can be prohibited

from advocating the violation of immoral segregation laws;
or be it artistic:
For example, whether Americans can be denied the right to

create and enjoy literature, painting, sculpture, dance, the
movies and music of our choice.
I not only think it was wrong for these things to happen

and they did happen here in America -- but it was right for the
Supreme Court to step in when it did and protect these rights of
individuals against the majority.
You appear to disagree about what the Supreme Court did in

these cases. While there is plenty of room for debate about these
issues, each of us must take a stand on whether we believe the
Court was wrong in these most crucial decisions of our time.
I believe all Americans are born with certain inalienable

rights. As a child of God, my rights are not derived from the
majority, the state or the Constitution, but they were given to me
and to each of our fellow citizens by the Creator and represent
the essence of human dignity.
I agree with Justice Harlan, the most distinguished

conservative Justice of our era, who stated that the Constitution
is a "living thing." And that its protections are enshrined in
majestic phrases like "equal protection under the law" and "due
process," and thus can not be, as he said: "reduced to any
formula."
It is, as the great Chief Justice John Marshall said,

"intended to endure for ages to come, and, consequently, to be
adapted to the various crises of human affairs...only its great
outlines...marked."
For the next two weeks or so, my colleagues and I, yourself

and others, will be engaged in an historic debate that could
affect the direction of our country, and it would be a disservice
to the American people if we allowed that debate to be clouded by
102
the strident rhetoric of the far right or the far left. Such
inflammatory statements only detract from the central focus of
these hearings.
For better than two decades, you have been a distinguished

scholar, a man whose ideas have been debated in many
constitutional law classes in this country. In your writings, you
have forthrightly stated your principles. In your own words, you
have said, "My philosophy of judging is neither liberal or
conservative."
And you have suggested, equally forthrightly, what we should

examine in reviewing a judicial nomination, when you said, "You
look for a track record, and that means that you read any articles
they've written, any opinions they've written....There's no reason
to be upset about [that]."
I agree with you that there is a consistent thread throughout

your writings.
You said just two years ago that you "finally worked out a
philosophy which is expressed pretty much in that 1971 Indiana Law
Journal piece" your most definitive writing to date -- and
later added "my views have remained about what they were."
In the end, whatever my reaction or anyone's reaction to your

record, the process of confirmation is best served if we hear each
other out and use this unique opportunity to educate ourselves and
the American people about your record and what it may mean to the
Supreme Court and to the future of this country we both love. Our
respect for you, the majesty of our Constitution and the greatness
of the American people require no less.
OPENING STATEMENT OF ROBERT H. BORK, TO BE ASSOCIATE
JUSTICE OF THE U.S. SUPREME COURT
Judge BORK. Mr. Chairman, thank you very much, and distin-
guished members of the Judiciary Committee.
I would like first to introduce my family if I may.
The CHAIRMAN. Please. I apologize. I had an opportunity to meet
them and the hearing has been going on so long I failed to mention
that. Please do.
Judge BORK. Well, one person I cannot introduce to you is my
mother, Mrs. Elizabeth Bork, who is, I am confident, watching on
television. My wife, Mary Ellen Bork, in the gray suit; my daugh-
ter, Ellen Bork in the burgundy, my son Charles, and my son
Robert, Jr. And as Senator Hatch mentioned, Mrs. Potter Stewart,
who is a neighbor of ours, is with us today.
The CHAIRMAN. Welcome all. Thank you for being here.
Judge BORK. I want to begin by thanking the President for plac-
ing my name in nomination for this most important position. I am
flattered and humbled to have been selected. If confirmed, I assure
the Senate that I will approach the enormous task energetically
and enthusiastically and will endeavor to the best of my ability to
live up to the confidence placed in me.
I also want to thank President Ford and Senators Dole and Dan-
forth and Congressman Fish for their warm remarks in introduc-
ing me to the Senate and to this committee.
As you have said, quite correctly, Mr. Chairman, and as others
have said here today, this is in large measure a discussion of judi-
cial philosophy, and I want to make a few remarks at the outset on
that subject of central interest.
That is, my understanding of how a judge should go about his or
her work. That may also be described as my philosophy of the role
of a judge in a constitutional democracy.
The judge's authority derives entirely from the fact that he is ap-
plying the law and not his personal values. That is why the Ameri-
can public accepts the decisions of its courts, accepts even decisions
that nullify the laws a majority of the electorate or of their repre-
sentatives 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 legiti-
mate 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.
(103)
104
Where the words are precise and the facts simple, that is a rela-
tively easy task. Where the words are general, as is the case with
some of the most profound protections of our libertiesin the Bill
of Rights and in the Civil War Amendmentsthe 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 avail-
able to him and he begins to legislate a social agenda for the Amer-
ican 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 im-
munity 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 com-
mand if it is to do the work assigned to itif it is to 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 and yet accommodate that 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 interpret-
ed it and applied it in prior cases. That is why a judge must have
great respect for precedent. It is one thing as a legal theorist to
criticize the reasoning of a prior decision, even to criticize it severe-
ly, 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 v. Board of Education, the case which outlawed racial segre-
gation accomplished by government action. Brown overturned the
rule of separate but equal laid down 58 years before in Plessy v.
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 cautious-
ly. 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 Constitu-
tion and enacted our statutes. That does not mean that constitu-
tional 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 un-
reasonable 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 impor-
tant thing, the ultimate consideration, is the constitutional free-
dom that is given into our keeping. A judge who refuses to see new
threats to an established constitutional value and hence provides a
105
crabbed interpretation that robs a provision of its full, fair and rea-
sonable 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 envi-
sions, 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-1930's by
using the concept they had invented, the 14th amendment's sup-
posed guarantee of a liberty of contract, to strike down laws de-
signed 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 judg-
ing 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 will-
ing 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.
I note in closing, though it has been mentioned by President
Ford, that I have been fortunate to have a rich variety of experi-
ence in my professional career in the major areas of private prac-
tice, the academic world, government experience, and the judiciary.
I have been an associate junior partner and senior partner in one
of the nation's major law firms. I have been a professor at the Yale
Law School, holding two named chairs, as Chancellor Kent Profes-
sor, once held by William Howard Taft, and as the first Alexander
M. Bickel Professor of Public Law.
For almost 4 years I served as Solicitor General of the United
States, in which capacity I submitted hundreds of briefs and per-
sonally argued about 35 cases before the Supreme Court of the
United States.
Finally, for the past 5Vfe years I have been a judge in the U.S.
Court of Appeals for the District of Columbia Circuit, where I have
written, according to my countcounts have varied here this
morningabout 150 opinions, and participated in over 400 deci-
sions. I have a record in each of these areas of the law and it is for
this committee and the Senate to judge that record.
I will be happy to answer the committee's questions.
[The statement of Judge Bork follows:]
106
STATEMENT OF ROBERT H. BORK
I want to begin by thanking the President for placing my

name in nomination for this extremely important position. I am
both flattered and humbled to have been selected. If
confirmed, I assure the Senate that I will approach the
enormous task ahead energetically and enthusiastically and will
endeavor to the best of my ability to live up to the confidence
placed in me.
I also want to thank President Ford and Senators Dole and
Danforth and Congressman Fish for their warm remarks in
introducing me to the Senate and this Committee.
I would like to add a few remarks at the outset on a
subject of central interest in this hearing: my understanding
of how a judge should go about his or her work. That may also
be described as my philosophy of the role of the judge in a
constitutional democracy.
The judge's authority derives entirely from the fact that
he is applying the law and not his own personal values. That
is why the American public accepts the decisions of its courts,
accepts even decisions that nullify laws a majority of the
electorate or of their representatives voted for. The judge,
to deserve that trust and authority, must be every bit as
governed by law as is Congress, the President, the state
governors and legislatures, and the American people. No one,
107
- 2-
Including the judge, can be above the law. Only in that way
will Justice be done and the freedoms of Americans assured.
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 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 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 see that it is protected. As I wrote in an opinion, 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
authority. He or she diminishes liberty instead of enhancing
It.
That is why I agree with Judge Learned Hand, one of the

great jurists in our history. He wrote that the judge's
"authority and his immunity depend upon the assumption that he
108
-3 -
peaks with the mouth 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 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 and yet accommodate that 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 and applied it in prior cases. That is
why a judge must give great respect to precedent. 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 oyerturn 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 v. 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 v. 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.
109
- 4-
Nevertheless, overruling should be done sparingly and

cautiously. Respect for precedent Is part of the great
tradition of our lav, just as Is fidelity to the intent of
those who ratified the Constitution and enacted our statutes.
That does not mean that constitutional lav Is static. It
will evolve as judges modify doctrine to meet new circumstances
and nev technologies. Thus, today ve apply the first
amendment's guarantee of the freedom of the press to radio and
television and ve 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 said:
The important thing, the ultimate
consideration, is the constitutional freedom
that is given into our keeping. A judge vho
refuses to see nev 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 povers and
freedoms the framers specified are made
effective in today's circumstances.
But I must add that when a judge goes beyond this and reads
entirely nev values into the Constitution, values the framers
and ratifiers did not put there, he deprives the people of
their liberty. That liberty, vhich the Constitution clearly
envisions, is the liberty of the people to set their own social
agenda through the processes of democracy. Conservative judges
86-974 0 - 8 9 - 6
110
- 5-
frustrated that process in the mid-1930's, by using 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 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
Congress, the President, the legislatures and executives of the
fifty 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 with this Committee. 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.
Let me note In closing that I sit here today as one who has
been fortunate to have enjoyed in my professional career a rich
experience in four major areas of the law: private practice;
the academic world; government experience; and the Judiciary.
I have been an associate, Junior partner, and senior partner in
one of the nation's major law firms. I have been a professor
of law at Yale University, holding two named chairs, as
Chancellor Kent Professor, once held by William Howard Taft,
and as the first Alexander M. Bickel Professor of Public Law.
Ill
- 6 -
For almost four years I served as Solicitor General of the

United States, in which capacity I argued about 35 cases before
the Supreme Court of the United States. Finally, for the past
five and one-half years I have been a judge on the United
States Court of Appeals for the District of Columbia Circuit,
where I have written over 150 opinions and participated in over
400 decisions. I have a record in each of these areas of the
law and it is for this Committee and the Senate to judge that
record.
I will be happy to answer the Committee's questions.
112
The CHAIRMAN. Thank you very much, Judge.
Let me suggest to my colleagues that so people can plan when
they will be questioning, we would have this first round of ques-
tioning at 30 minutes apiece and we would go in the same order as
with the opening statements, and then make a judgment as we go,
Judge, as towe should have a break somewhere in here, and after
several rounds we will break briefly to give everyone an opportuni-
ty to stretch their legs, and if at any point you would like to break,
you let me know.
Judge BORK. Thank you, Mr. Chairman.
The CHAIRMAN. Let me begin. I want to begin to try to under-
stand better and lay out your record in this round of questioning
that I have. I want to talk a little bit about what you have said and
what you believe about the role of the courts and what that role is
in society, and as you said, your judicial philosophy.
Judge Bork, I am sure you know the one question to be raised in
these hearings is whether or not you are going to vote to overturn
Supreme Court decisions, which is obviously your right as a Su-
preme Court Justice, if you are confirmed.
In 1981 in testimony before the Congress, you said "there are
dozens of cases" in which the Supreme Court made a wrong deci-
sion. This January, in remarks before the Federalist Society, you
implied that you would have no problem in overruling decisions
based on a philosophy or a rationale that you rejected.
In an interview with the District Lawyer magazine in 1985, you
were asked if you could identify cases that you think should be re-
considered. You said, and I again quote, "Yes, I can but I won't."
Would you be willing for this committee to identify the "dozens
of cases" that you think should be reconsidered?
Judge BORK. Mr. Chairman, to do that I am afraid I would have
to go out and start back through the casebooks again to pick out
the ones.
I do not know how many should be reconsidered. I can discuss
with you the grounds upon, the way in which I would reconsider
them.
Let me mention that Federalist Society talk which was given
from scribbled notes. I had some notes, but I scribbled something in
the margin which I got up and said in response to another speaker.
It was that a non-originalist decisionby which I mean a decision
which does not relate to a principle or value the ratifiers enacted
in the Constitutioncould be overruled.
If you look at the next paragraph of that talk, which was a writ-
ten out part and not the extemporized part, it contradicts that
statement. The very next paragraph states that the enormous ex-
pansion of the commerce power, Congress' power under the com-
merce clause of the Constitution, is settled, and it is simply too late
to go back and reconsider that, even though it appears to be much
broader than anything the framers or the ratifiers intended.
So there is, in fact, a recognition on my part that stare decisis or
the theory of precedent is important. In fact, I would say to you
that anybody who believes in original intention as the means of in-
terpreting the Constitution has to have a theory of precedent, be-
cause this Nation has grown in ways that do not comport with the
intentions of the people who wrote the Constitutionthe commerce
113
clause is one exampleand it is simply too late to go back and tear
that up.
I cite to you the Legal Tender cases. These are extreme examples
admittedly. Scholarship suggests that the framers intended to pro-
hibit paper money. Any judge who today thought he would go back
to the original intent really ought to be accompanied by a guardian
rather than be sitting on a bench.
The CHAIRMAN. I could not agree with you more, Judge, but
when you and I had our brief discussion a month or so ago, a simi-
lar question was raised by me or by youI cannot recall whoand
you pointed out that you cite the commerce clause and the legal
tender decisions as examples.
Can you give us any other examples of the numerous decisions
you have criticized that might fall in that category of being settled
doctrine now and would cause such upheaval to change? Because
you know there have been many decisions you have criticized that
have been decided from 1942 on after the commerce clause.
Judge BORK. I can, Senator. I think maybe it would be easierI
have criticized some. Let me say this: I am a judge and I am acute-
ly aware that my authority, unlike yours, arises only if I can ex-
plain why what I am doing is rooted in the Constitution or in a
statute. The cases I criticized, and I have criticized a lot in my
time, but then law is an intellectual enterprise and it grows from
argument back and forth and criticism, strong criticism.
The CHAIRMAN. I am not criticizing your right to criticize.
Judge BORK. All right. I criticized these cases on the basis of the
reasoning or lack of reasoning that the courts offered. For example,
the case that has come up and was mentioned, I think, in your
opening statement, Shelley v. Kraemer. Shelley v. Kraemer was a
case decided under the 14th amendment. The 14th amendment, as
we all know, applies only when government acts, when government
coerces and denies equal protection of the laws or due process.
That was a racial covenant, restrictive racial covenant case, and
the Court held that when a State court enforced that contract, that
was action by the government; and, hence, the 14th amendment ap-
plied to private action.
I have never been for racially restrictive covenants. I argued in
the Supreme Court that racially discriminatory private contracts
were covered by Section 1981, a famous post-Civil War enactment,
and outlawed as such by that statute. That was Runyon v.
McCrary.
The CHAIRMAN. What year was the statute, Judge? Do you know?
Judge BORK. NO, I do not offhand.
The CHAIRMAN. Did it ante-date the Shelley case?
Judge BORK. Oh, yes. But it just had not been applied. It was a
post-Civil War statute.
The difficulty with Shelley was not that it struck down a racial
covenant, which I would be delighted to see happen, but that it
adopted a principle which, if generally adopted, would turn almost
all private action into action to be judged by the Constitution.
Let me give you an example. If people at a dinner party get into
a political argument, and the guest refuses to leave when asked to
do so by the host, and finally the host calls the police to have the
unwanted guest ejected, under Shelley v. Kraemer that would
114
become State action, and the guest could raise the first amend-
ment. His first amendment rights would have been violated be-
cause a private person got sick of his political diatribe and asked
him to leave and the police assisted him.
In that way, any contract action, any tort action, any kind of
action can be turned into a constitutional case. Now, I am not
alone in criticizing Shelley v. Kraemer. I think I have here Profes-
sor Herbert Wechsler who has criticized it. Professor Tribe has said
that, "[t]o contemporary commentators . . . Shelley and [another
case] appear as highly controversial decisions. In neither case, the
critical consensus has it, is the Court's finding of State action [Gov-
ernment coercion] supported by any reasoning which would suggest
that the 'State action' [doctrine] is a meaningful requirement
rather than an empty formality."
There have been some suggestions that my constitutional philos-
ophy or my reasoning about these cases is in some sense eccentric.
It is not in the least bit. All of these cases have been criticized. In
fact, Shelley v. Kraemer has never been applied again. It has had
no generative force. It has not proved to be a precedent. As such, it
is not a case to be reconsidered. It did what it did; it adopted a
principle which the Court has never adopted again. And while I
criticized the case at the time, it is not a case worth reconsidering.
The CHAIRMAN. Well, let's talk about another case. Let's talk
about the Griswold case. Now, while you were living in Connecti-
cut, that State had a lawI know you know this, but for the
recordthat it made it a crime for anyone, even a married couple,
to use birth control. You indicated that you thought that law was
"nutty," to use your words and I quite agree. Nevertheless, Con-
necticut, under that "nutty" law, prosecuted and convicted a doctor
and the case finally reached the Supreme Court.
The Court said that the law violated a married couple's constitu-
tional right to privacy. You criticized this opinion in numerous ar-
ticles and speeches, beginning in 1971 and as recently as July 26th
of this year. In your 1971 article, "Neutral Principles and Some
First Amendment Problems," you said that the right of married
couples to have sexual relations without fear of unwanted children
is no more worthy of constitutional protection by the courts than
the right of public utilities to be free of pollution control laws.
You argued that the utility company's right or gratification, I
think you referred to it, to make money and the married couple's
right or gratification to have sexual relations without fear of un-
wanted children, as "the cases are identical." Now, I am trying to
understand this. It appears to me that you are saying that the gov-
ernment has as much right to control a married couple's decision
about choosing to have a child or not, as that government has a
right to control the public utility's right to pollute the air. Am I
misstating your rationale here?
Judge BORK. With due respect, Mr. Chairman, I think you are. I
was making the point that where the Constitution does not speak
there is no provision in the Constitution that applies to the case
then a judge may not say, I place a higher value upon a marital
relationship than I do upon an economic freedom. Only if the Con-
stitution gives him some reasoning. Once the judge begins to say
economic rights are more important than marital rights or vice
115
versa, and if there is nothing in the Constitution, the judge is en-
forcing his own moral values, which I have objected to. Now, on the
Griswold case itself
The CHAIRMAN. Can we stick with that point a minute to make
sure I understand it?
Judge BORK. Sure.
The CHAIRMAN. SO that you suggest that unless the Constitution,
I believe in the past you used the phrase, textually identifies, a
value that is worthy of being protected, then competing values in
society, the competing value of a public utility, in the example you
used, to go out and make moneythat economic right has no more
or less constitutional protection than the right of a married couple
to use or not use birth control in their bedroom. Is that what you
are saying?
Judge BORK. NO, I am not entirely, but I will straighten it out. I
was objecting to the way Justice Douglas, in that opinion, Griswold
v. Connecticut, derived this right. It may be possible to derive an
objection to an anti-contraceptive statute in some other way. I do
not know.
But starting from the assumption, which is an assumption for
purposes of my argument, not a proven fact, starting from the as-
sumption that there is nothing in the Constitution, in any legiti-
mate method of constitutional reasoning about either subject, all I
am saying is that the judge has no way to prefer one to the other
and the matter should be left to the legislatures who will then
decide which competing gratification, or freedom, should be placed
higher.
The CHAIRMAN. Then I think I do understand it, that is, that the
economic gratification of a utility company is as worthy of as much
protection as the sexual gratification of a married couple, because
neither is mentioned in the Constitution.
Judge BORK. All that means is that the judge may not choose.
The CHAIRMAN. Who does?
Judge BORK. The legislature.
The CHAIRMAN. Well, that is my point, so it is not a constitution-
al right. I am not trying to be picky here. Clearly, I do not want to
get into a debate with a professor, but it seems to me that what
you are saying is what I said and that is, that the Constitutionif
it were a constitutional right, if the Constitution said anywhere in
it, in your view, that a married couple's right to engage in the deci-
sion of having a child or not having a child was a constitutionally-
protected right of privacy, then you would rule that that right
exists. You would not leave it to a legislative body no matter what
they did.
Judge BORK. That is right.
The CHAIRMAN. But you argue, as I understand it, that no such
right exists.
Judge BORK. NO, Senator, that is what I tried to clarify. I argued
that the way in which this unstructured, undefined right of privacy
that Justice Douglas elaborated, that the way he did it did not
prove its existence.
The CHAIRMAN. YOU have been a professor now for years and
years, everybody has pointed out and I have observed, you are one
of the most well-read and scholarly people to come before this com-
116
mittee. In all your short life, have you come up with any other way
to protect a married couple, under the Constitution, against an
action by a government telling them what they can or cannot do
about birth control in their bedroom? Is there any constitutional
right, anywhere in the Constitution?
Judge BORK. I have never engaged in that exercise. What I was
doing was criticizing a doctrine the Supreme Court was creating
which was capable of being applied in unknown ways in the future,
in unprincipled ways. Let me say something about Griswold v. Con-
necticut. Connecticut never tried to prosecute any married couple
for the use of contraceptives. That statute was used entirely
through an aiding and abetting clause in the general criminal code
to prosecute birth control clinics that advertised. That is what it
was about.
The CHAIRMAN. But, in fact, they did prosecute a doctor, didn't
they, for giving advice?
Judge BORK. Well, I was at Yale when that case was framed by
Yale professors. That was not a case of Connecticut going out and
doing anything. What happened was some Yale professors sued to
have thatbecause they like this kind of litigationto have that
statute declared unconstitutional. It got up to the Supreme Court
under the name of Poe v. Ullman. The Supreme Court refused to
take the case because there was no showing that anybody ever got
prosecuted.
They went back down and engaged in enormous efforts to get
somebody prosecuted and the thing was really a test case on an ab-
stract principle, I must say.
The CHAIRMAN. Well, let me say it another way then, without
doing it in case. Does a State legislative body, or any legislative
body, have a right to pass a law telling a married couple, or anyone
else, that behindlet's stick with the married couple for a
minutebehind their bedroom door, telling them they can or
cannot use birth control? Does the majority have the right to tell a
couple that they cannot use birth control?
Judge BORK. There is always a rationality standard in the law,
Senator. I do not know what rationale the State would offer or
what challenge the married couple would make. I have never decid-
ed that case. If it ever comes before me, I will have to decide it. All
I have done was point out that the right of privacy, as defined or
undefined by Justice Douglas, was a free-floating right that was
not derived in a principled fashion from constitutional materials.
That is all I have done.
The CHAIRMAN. Judge, I agree with the rationale offered in the
case. Let me just read it to you and it went like this. I happen to
agree with it. It said, in part, "would we allow the police to search
the sacred precincts of marital bedrooms for telltale signs of con-
traceptives? The very idea is repulsive to the notions of privacy
surrounding the marriage relationship. We deal with the right of
privacy older than the Bill of Rights. Marriage is a coming togeth-
er for better or worse, hopefully enduring, and intimate to the
degree of being sacred. The association promotes a way of life, not
causes. A harmony of living, not political face. A bilateral loyalty,
not a commercial or social projects."
117
Obviously, that Justice believes that the Constitution protects
married couples, anyone.
Judge BORK. I could agree with almost everyI think I could
agree with every word you read but that is not, with respect, Mr.
Chairman, the rationale of the case. That is the rhetoric at the end
of the case. What I objected to was the way in which this right of
privacy was created and that was simply this. Justice Douglas ob-
served, quite correctly, that a number of provisions of the Bill of
Rights protect aspects of privacy and indeed they do and indeed
they should.
But he went on from there to say that since a number of the pro-
visions did that and since they had emanations, by which I think
he meant buffer zones to protect the basic right, he would find a
penumbra which created a new right of privacy that existed where
no provision of the Constitution applied, so that he
The CHAIRMAN. What about the ninth amendment?
Judge BORK. Wait, let me finish with Justice Douglas.
The CHAIRMAN. All right.
Judge BORK. He did not rest on the ninth amendment. That was
Justice Goldberg.
The CHAIRMAN. Right. That is what I was talking about.
Judge BORK. Yes. And I want to discuss first Justice Douglas and
then I would be glad to discuss Justice Goldberg.
The CHAIRMAN. OK.
Judge BORK. NOW you see, in that way, he could have observed,
equally well, the various provisions of the Constitution protect indi-
vidual freedom and therefore, generalized a general right of free-
dom that would apply where no provision of the Constitution did.
That is exactly what Justice Hugo Black criticized in dissent in
that case, in some heated termsand Justice Potter Stewart also
dissented in that case.
So, in observing that Griswold v. Connecticut does not sustain its
burden, the judge's burden of showing that the right comes from
constitutional materials, I am by no means alone. A lot of people,
including Justices, have criticized that decision.
The CHAIRMAN. I am not suggesting whether you are alone or in
the majority. I am just trying to find out where you are. As I hear
you, you do not believe that there is a general right of privacy that
is in the Constitution.
Judge BORK. Not one derived in that fashion. There may be other
arguments and I do not want to pass upon those.
The CHAIRMAN. Have you ever thought of any? Have you ever
written about any?
Judge BORK. Yes, as a matter of fact, Senator, I taught a seminar
with Professor Bickel starting in about 1963 or 1964. We taught a
seminar called Constitutional Theory. I was then all in favor of
Griswold v. Connecticut. I thought that was a great way to reason.
I tried to build a course around that, only I said: we can call it a
general right of freedom, and let's then take the various provisions
of the Constitution, treat them the way a lawyer treats common
law cases, extract a more general principle and apply that.
I did that for about 6 or 7 years, and Bickel fought me every step
of the way; said it was not possible. At the end of 6 or 7 years, I
decided he was right.
118
The CHAIRMAN. Judge, let's go on. There have been a number of
cases that flow from the progeny of the Griswold case, all relying
on Griswold, the majority view, with different rationales offered,
that there is a right of privacy in the Constitution, a general right
of privacy, a right of privacy derived from the due process, from
the 14th amendment, a right of privacy, to use the Douglas word
the penumbra, which you criticize, and a right Goldberg suggested
in the Griswold case, from the ninth amendment. It seems to me, if
you cannot find a rationale for the decision of the Griswold case,
then all the succeeding cases are up for grabs.
Judge BORK. I have never tried to find a rationale and I have not
been offered one. Maybe somebody would offer me one. I do not
know if the other cases are up for grabs or not.
The CHAIRMAN. Wouldn't they have to be if they are based on
the same rationale?
Judge BORK. Well, it may be thatI have written that some of
these cases were wrongly decided, in my opinion. For some of them
I can think of rationales that would make them correctly decided
but wrongly reasoned. There may be other ways, that a generalized
and undefined right of privacyone of the problems with the right
of privacy, as Justice Douglas defined it, or did not define it, is not
simply that it comes out of nowhere, that it does not have any root-
ing in the Constitution, it is also that he does not give it any con-
tours, so you do not know what it is going to mean from case to
case.
The CHAIRMAN. Let's talk about another basic right, at least I
think a basic right, the right not to be sterilized by the govern-
ment. The Supreme Court addressed that right in the famous case,
Skinner v. Oklahoma. Under Oklahoma law, someone convicted of
certain crimes faced mandatory sterilization. In 1942, Mr. Skinner
had been convicted of his third offense and therefore, faced sterili-
zation, brought his case to the Supreme Court. The Court said that
the State of Oklahoma could not sterilize him. Let me read some-
thing from the Court's opinion.
"We are dealing with legislation which involves one of the basic
civil rights of man. Marriage and procreation are fundamental to
the very existence and survival of a race. There is no redemption
for the individual whom the law touches. Any experiment which
the State conducts is to his irreparable injury. He is forever de-
prived of a basic liberty."
Judge, you said that Supreme Court decision is improper and in-
tellectually empty. I would like to ask you, do you think that there
is a basic right, under the Constitution, not to forcibly sterilized by
the State?
Judge BORK. There may well be, but not on the grounds stated
there. I hate to keep saying this, Mr. Chairman, much of my objec-
tion is to the way some members of the Court, not always the
whole Court, has gone about deriving these things. In Skinner v.
Oklahoma, I think it might have been better to say that the statute
does not have a reasonable basis because there is no scientific evi-
dence upon which to rest the thought that criminalitythat was,
not then, I do not know anything about the state of scientific evi-
dence nowthat criminality is really genetically carried.
The CHAIRMAN. But if there was, they would be able to sterilize?
119
Judge BORK. Well, I do not know. The second thing about that
statute, in this case, is that Justice Douglas did say something
which is quite correct and he did not need to talk about procrea-
tion and fundamental rights to do it. That is, he noted that the
statute made distinctions, for example, between a robber and an
embezzler. The embezzler was not subject to this kind of thing.
Had he gone on and pointed out that those distinctions really
sterilized, in effect, blue collar criminals and exempted white collar
criminals, and indeed, appeared to have some taint of a racial basis
to it, he could have arrived at the same decision in what I would
take to be a more legitimate fashion.
The CHAIRMAN. I thought that under the equal protection clause,
that was the essence of it and you have writtenI may be mistak-
enI thought you had written that there is no basis under the
equal protection clause for having arrived at that conclusion.
Judge BORK. Not the way he did it. What the Court was doing
with the equal protection clause for many years, and to which I ob-
jected more generally in this article, is that they would decide
whether a whole group was in or out and then they would decide
what level of scrutiny they would give to the statute to see whether
it was constitutional or not.
I think that derivesand I hate to get into a technical ques-
tionbut I think it derives from a footnote in the Carolene Prod-
ucts case, in which they were supposed to look at groups, as such.
It would be much better if instead of taking groups as such and
saying this group is in, that group is out, if they merely used a rea-
sonable basis test and asked whether the law had a reasonable
basis. I think the statute, in Skinner v. Oklahoma, the sterilization
statute, would have failed under a reasonable basis test.
The CHAIRMAN. SO you have to find a reasonable basis. If there is
one, you could sterilize. If there is not one, you cannot. It seems to
me that it comes down to a basic difference. You do not believe the
Constitution recognizes what I consider to be a basic liberty, a basic
liberty not to be sterilized.
Judge BORK. I agree that that is a basic liberty, and I agree that
family life is a basic liberty and so forth. But the fact is we know
that legislatures can, constitutionally, regulate some aspects of sex-
uality.
The CHAIRMAN. True.
Judge BORK. We know that legislatures do and can constitution-
ally regulate some aspects of family life. There is no question, I
think, that these things are subject to some regulation. We have
divorce laws, custody laws, child beating laws and so forth. The
question always becomes, under the equal protection clause, has
the legislature a reasonable basis for the kind of thing it does here.
The sterilization law would probably require an enormous or per-
haps impossible degree of justification.
The CHAIRMAN. I hope so.
Judge, my time is about up, but with regard to the Griswold
case, you are quoted in 1985you were a judge at this time, al-
though this statement was not made in your judicial capacityas
saying, "I don't think there is a supportable method of constitu-
tional reasoning underlying the Griswold decision."
120
So obviously, you thought about it, and you at least at that point
concluded you could not find one.
It seems to me, Judgeand as I said, there are many more cases
I would like to talk to you about, and I appreciate you engaging in
this dialoguethat you say that a State can impact upon marital
relations and can impact upon certain other relations, and it seems
to me that there are certain basic rights that they cannot touch.
And what you seem to be saying to me is that a State legislature
can theoretically, at least, pass a law sterilizing, and we will see
what the courts say. It is not an automatic, it is not basic. Right
now, if any State legislature in the country asked counsel for the
legislature, "Could we pass a law, sterilizing?" I suspect the imme-
diate response from counsel would be, "No, you cannot do that"
not only politically, but constitutionally.
Have any State legislative bodies said, "Can we decide on wheth-
er or not someone can or cannot use contraceptives," not any rea-
sonable basis, I imagine all counsel would say "No" flatly; cannot
even get into that area.
And it seems to me you are not saying that. You are saying that
it is possible that can happen, and in Griswold you are saying that
there is no principle upon which they could reach the resultnot
the rationale, you say; you say the result.
Judge BORK. Well, I think I was talking about the principle un-
derlying that one. But I should say
The CHAIRMAN. Well, wait, let me stop you there, Judge, because
I want to make sure I understand. The principle underlying that
one is the basic right to privacy, right, and from that flows all
these other cases, all the way down to Franz, which you spoke to;
all the way down to Roe v. Wade. They all are premised upon that
basic principle that you cannot find.
I am not saying you are wrong. I just want to make sure I under-
stand what you are saying.
Judge BORK. Well, I do not think all those cases necessarily
follow. They used the right of privacy in some of those cases, and it
was not clear why it was a right of privacy.
I should say that I think not only Justices Black and Stewart
could not find itand Gerald Gunther, who is a professor at Stan-
ford and an authority in these matters, has criticized the case; and
Professor Philip Kurland has referred to Griswold v. Connecticut as
a "blatant usurpation."
The CHAIRMAN. But most did find it; the majority did find it,
though, didn't they?
Judge BORK. Yes. But I am just telling you, Senator, that a lot of
people have thought the reasoning of that case was just not reason-
ing.
The CHAIRMAN. My time is up. Judge, I want to make it clear, I
am not suggesting there is anything extreme about your reasoning.
I am not suggesting it is conservative or liberal. I just want to
make sure I understand it. And as I understand what you have
said in the last 30 minutes, a State legislative body, a government,
can, if it so chose, pass a law saying married couples cannot use
birth control devices.
Judge BORK. Senator, Mr. Chairman, I have not said that; I do
not want to say that. What I am saying to you is that if that law is
121
to be struck down, it will have to be done under better constitution-
al argumentation than was present in the Griswold opinion.
The CHAIRMAN. Again I will end, to quote you, sir, you said, "The
truth is that the Court could not reach the result in Griswold
through principle." I assume you are talking about constitutional
principle.
Judge BORK. I do not knowwhat is that from?
The CHAIRMAN. I am referring to your 1971 article. That is the
quote in the 1971 article. And then you said
Judge BORK. DO you have a page number for that, Senator?
The CHAIRMAN. I will get the page. Sorrya 1982 speech while
you were Judge, speaking at Catholic University. You said, "The
result in Griswold could not have been reached by proper interpre-
tation of the Constitution." End of quote. We will dig it out for you
here to show youI believe you all sent it to us, so that is how we
got it.
Judge BORK. OK. Yes.
The CHAIRMAN. Well, my time is up. I appreciate it. We will do
more of this.
I yieldI see Senator Byrd is here. Did you have an opening
statement you wished to make, Senator?
Senator THURMOND. I was just going to say I will yield to Senator
Byrd if he wishes to make an opening statement.
The CHAIRMAN. Senator Byrd. We are going to cease the ques-
tioning for a moment while Senator Byrd makes his opening state-
ment.
OPENING STATEMENT OF SENATOR ROBERT C. BYRD
Senator BYRD. Mr. Chairman, I thank you for allowing me to in-
tervene at this point to make my opening statementor, to make a
statement; this may be the opening and the closing statement.
And I thank Senator Thurmond and my other colleagues on the
committee for allowing me to proceed.
I join with all of my colleagues in welcoming Judge Bork back
before the Judiciary Committee and in welcoming him to these
hearings; and I apologize for not being present to hear your open-
ing statement. I assume you will be making further statements, so
I can use the word "opening" advisedly.
I compliment you, Judge Bork, on this nomination, and I not
only wish to express a hearty welcome to you, but also to your
lovely wife and your sons and daughter, who I am told are seated
here in the audience today.
As I have stated so many times in the past, the Senate has both
the right and the duty to scrutinize as carefully as possible the in-
dividuals who are nominated to serve on the Supreme Court of the
United States.
Unlike the case when we consider legislation, the Senate has no
second chance in passing on lifetime appointments. As an equal
partner with the President in making these appointments, the
Senate should consider the nominee's integrity, candor, tempera-
ment, experience, education, and judicial philosophy.
So we meet here today to begin the exercise of that responsibil-
ity.
122
For my own part, I have certain questions, which I hope that if I
am not here to ask them, that the committee will endeavor to
secure answers for them, and certainly to explore them. I am inter-
ested in your apparent belief in the concept of judicial restraint.
Let me say also at this early point in my statement that it does
not bother me that you are a conservative. I am a conservative. Ev-
erybody knows that from the shirts that we are wearing today. I
did not wear a blue shirt, nor did you, nor did I see Strom Thur-
mond nor Orrin Hatch. But not so facetiously, I am not troubled
that you are a conservative. I am not even troubled that the nomi-
nation and confirmation of a conservative to fill this position which
will become vacant will tilt the Court in the direction of a conserv-
ative Court.
I think that the Supreme Court of the United States should be a
conservative Court. I think the Court should be conservative. I
happen to believe that the body in our constitutional system that
should be liberal, if at all, is the legislative body, in which I serve.
But I do not construe the intent of the writers of our Constitu-
tionI do not believe that they intended for the Supreme Court of
the United States to be a "travelling Constitutional Convention",
as the late Mr. Justice Hugo Black referred to at one point in a
statement.
I think that the legislature is here to make the laws; that is what
the founders said in the first sentence of the first article of the
Constitution of the United States. So I intend, as far as I am con-
cerned, to not make my final judgment, and it is not made if I had
to answer before God right at this moment, as to how I would vote
on your nomination; I could not say.
The fact that you are a conservative does not bother me, and it
does not bother me if the Court becomes what is called a conserva-
tive court because I was very critical of the court in earlier years.
When Chief Justice Warren held that position, I was very critical
of the Court.
And this is one vote for or against you at some point, but I will
just say that to make it very clear that I do not personally want to
see another Warren Court in my lifetime.
But I am interested in your apparent belief in the concept of ju-
dicial restraint. You have used this term in many instances, both
in your writingswhich are very extensivein your teachings, and
in your service as a Member of the U.S. District Court of Appeals
of the District of Columbia.
You have called for judges to defer to the will of the people as
expressed through their elected representatives. This makes good
sense.
I shall ask a question which is a rhetorical question, but which I
am sure this committee will explore and which I very much need
the answer to in making my own decision on your nomination.
Where in your embrace of majority rule is the protection for the
rights of the minority? Now, as the majority leader of the Senate
and one who has been the minority leader of the Senate, I am very
conscious of the rights of the minority, and I chafe often because I
feel that the rights of the majority are being abused by the minori-
ty, and I feel that the majority should rule. But at the same time, I
123
feel that the minority has some rights, too, in the Senate of the
United States.
So I am sure it can be appreciated that I would ask this question.
We are both interested in majority rule, but where do you embrace
in your concept of judicial restraint the rights of the minority?
You have written extensively as a legal theorist about deference
to majority will. But are your views on standing so restrictive that
the little guy, or even the U.S. Senate, has no hope of ever getting
his or her or its day in court?
I read a great deal about you, and as I have indicated, I have a
tremendous amount of respect for you, and I admire you. I believe
that the committee should explore your beliefs, your philosophy, in
several areas.
As majority leader, my duties will often require my presence on
the Senate floor, and I will not be able to attend these hearings as
much as I would like to attend them. I wish I could be here. I will
read the record carefully, not just turn it over to a staff member
before I reach my final decision on your nomination, and I will be
watching the tapes as much as I can in the evenings so that I truly
can keep abreast as much as possible of these hearings.
I hope that the committee will be able to ask you and other wit-
nesses to address these concerns, some of which I am mentioning
here.
First and perhaps most fundamentally, the committee should in-
quire about your understanding of and adherence to the principle
of judicial restraint. It has been argued that you apply this philoso-
phy selectively. One report even suggests that it is possible to de-
termine the outcome of your decisions depending on the parties to
a case.
Now, having been in the political arena for 42 years, I know how
charges are made, and often made without substantial good reason.
But this is the purpose of these hearings, to determine in our own
viewpoints and in answer to our own consciences, where do you
stand. Is it true that you apply the philosophy of judicial restraint
selectively? And is it true that depending on whether or not the
participants are the government and a utility or some other busi-
ness, that you will decide this way or that way; depending upon
whether or not it is a government agency and an individual or a
public interest group, you will decide this way or that way, and it
can almost be foretold before you speak as to where you will come
down?
I do not know. But I have read that, and I have read some cases
that would indicate that at least there is some good reason to think
that.
So I hope that the committee will discuss with you whether these
reports are mere coincidence or an integral part of your philosophy
as you apply it. I hope that the committee will consider your un-
derstanding of the separation of powers. Here is where I become
very, very much involved. As a proponent of judicial restraint, you
have on some occasions, I believe, stated that the judiciary should
not usurp the authority of the executive or legislative branches of
the government. And I believe that, too; I think that the judiciary
has at times usurped the role and the powersI should say the
role, certainlyof the legislative branch.
124
Yet some of your theories and decisions suggest that you consist-
ently favor the supremacy of the executive over the legislative
when these two authorities are at odds. That may be true; maybe it
is not. That is what we should try to find out. I am disturbed if
that is indeed the case.
For example, you testified in 1973 against legislation to establish
an independent special prosecutor, despite the fact that experience
shows that trusting the executive to investigate itself is a resound-
ing reaffirmation of the fable of the fox guarding the chicken coop.
And in a case decided only this year, I believe you suggested that
what is commonly referred to as executive privilege may be dele-
gated by the President to others.
I am interested in knowing more about just how far your views
go as to such delegation because of the fear that such a view could
have had a devastating impact on the public's right to know and
the public's right to discover the abuses of Watergate and the Iran
Contra affair.
In the case of Barnes v. Kline, you stated that Congress has no
right to bring a court challenge to the improper use of the veto
power by the executive, maintaining that such issues should be de-
cided in the give and take of politics. Now, if I am wrong in any-
thing I have said, you will correct me, and I will respect the correc-
tion.
But I ask a rhetorical question: Why should the country have to
suffer the effects of stalemate and acrimony between two branches
of government?
As Alexander Pope said, "Who shall decide when doctors dis-
agree?"
So, when the President, when the executive and the legislative
disagree, who shall decide? And my understanding is that nobody
else should decide other than the Supreme Court or the courts, ul-
timately, the Supreme Court; and of course, if it is a political thick-
et, I can understand how in instances it is appropriate to look upon
that as a political question. But we are talking about the pocket
veto or the veto power of the President of the United States, veto-
ing a piece of legislation that has been written by the elected rep-
resentatives of the people of this country. And a pocket veto is not
something to be taken lightly. And what are the powers of the
President of the United States under this Constitution when it
comes to exercising the pocket veto? What is his authority? Where
does his authority end?
This is not a mere political question. This is a question that may
involve the health and welfare for the national defense, for the na-
tional security of the people of this country.
Why should the unconstitutional act, if it be one, of one branch
of the government go unchecked? Who will decide such disputes if
not the Court?
I am in agreement with the results of many of your policies as I
understand them, particularly in the area of criminal lawthe ex-
clusionary rule. So my feelings very much comport with what I
think I have observed as having been in your position in certain
cases. In my view, some courts have failed to give appropriate con-
sideration to the rights of the majority and the victims of crimes
and the potential victims of crimes in criminal cases. Laws de-
125
signed to be tough on criminals are necessary and should be en-
forced, as you have pointed out.
It is difficult to appreciate the argument that the death penalty
is unconstitutional when it is referred to in the Constitution. Cap-
ital punishment is referred to time and time again in the amend-
ments to the Constitution.
There is another area of your philosophy that is of particular in-
terest to meyour criticism of the election campaign laws. Follow-
ing a period of abuse, Congress passed laws limiting the amount of
campaign contributions and requiring disclosure of such contribu-
tions. Even though the whole Supreme Court upheld the major pro-
visions of these election laws, I believe you have stated that you
believe these provisions are unconstitutional as a violation of the
freedom of speech.
We have had campaign financing reform legislation, now before
the Senate, for months. We had the seventh cloture vote on it
today, and failed to get cloture, so this is very much on my mind at
the moment. But how can one reconcile his aggressiveness against
this reform legislation with a general philosophy that judges
should exercise restraint in finding legislation to be unconstitution-
al?
I look forward to your testimony. I know that it will be useful to
me in making up my mind on your nomination.
I believe that the Court should exercise judicial restraint and
that judges should not substitute their personal views for the will
of the people or the Constitution.
As Justice Hugo Black observed in 1970 failure of the Court to
adhere to the language of the Constitution makes it dangerously
simple for courts to operate as a continuing Constitutional Conven-
tion. I am troubled by the thought, however, of judicial restraint if
it is carried to the extreme, that it can become its own peculiar
kind of judicial activism.
Therefore our role in the Senate is to determine whether your
theory of judicial restraint is simply that of a constitutional con-
servative or whether it cloaks a private agenda as some have said,
to overturn those court decisions with which you openly disagree.
As we celebrate the bicentennial of our Constitution, it is entire-
ly fitting that we discuss the allegiance to and regard for the Con-
stitution of a person to whom we are contemplating and trusting
major responsibility for its interpretation and application. I do not
question your allegiance to that Constitution. I do not have to ask
you any questions on that point. I do not have to question your
regard for the Constitution. But the Constitution is no ordinary
document, and this is no ordinary appointment. And these are not
ordinary times.
The foundation of our Government is that Constitution, and we
should insist on a standard no less than that of the first Chief Jus-
tice, John Marshall, who admonished that we must never forget
that it is the Constitution that we are expounding.
Mr. Chairman, I was told that the Senators would have 30 min-
utes for their opening statements. That constitutes my opening
statement. I would be happy to hear Judge Bork's response. I
would like to hear him respond if he cares to respond, since I saw
him taking some notes or making some notes. I would be happy to
126
hear his response. And then, may I assure Judge Bork that if I
have to leave, it will not be through any discourtesy or intention to
run away, but I shall follow his appearances here and read with
great interest the words that he speaks into the record as he re-
sponds to this committee's questions.
The CHAIRMAN. I say to the majority leader it is slightly differ-
ent than what we have been doing, but Judge, just as you can ap-
preciate the Court has certain rules, when the majority leader of
the United States Senate sits down and says he understood it to be
30 minutes, we all understand it to be 30 minutes. And I may be
chairman of this committee, but I am not slow. [Laughter.]
So what I would suggest isI understand if I ask unanimous con-
sent, since it is not the way in which we were going to go, if we
should suggest that we would proceed to allow the witness to re-
spond if he wishes to to anything that Senator Byrd said.
Let me check with my ranking member.
Senator THURMOND. That will be all right, Senator.
The CHAIRMAN. SO if you would like to, Judge, please respond; if
not
Judge BORK. Senator, I should say that I was jotting down some
notes for further investigation, but I guess I will talk about them
now.
The CHAIRMAN. YOU need not talk about them now.
Judge BORK. NO, no; I would be glad to. The response I will give
now will not be as full as I might give as we get into this.
My criticism of the Federal Election Campaign Act was really, as
I recall, largely that the contribution limits were too low and the
disclosure limits were too low. And I think I pointed out that
Eugene McCarthy's campaign in New Hampshire, which persuaded
President Johnson not to run again, could not have been financed
under limits that low, and that the disclosure limits were so low
that a lot of people who would like to support a position or a candi-
date, but who were in sensitive positionslike a president of a uni-
versity or something of that sorteffectively could not contribute.
I think, as I understand it, for example, inflation had shrunk the
contribution limit by the time I spoke from $1,000, I think it was,
to $700 or $800. As I understand it, you have now indexed that so
that inflation will no longer eat it away.
I think my difficulties are more with the levels at which they
were set as being unrealistic enough to raise a problem; and
indeed, I think various judges had differenton the Supreme
Court, I think Chief Justice Burger had that problem with the stat-
ute, among other things.
On Barnes v. Kline, which is my view of congressional standing,
that view, Senator, is dictated by my view of judicial restraint.
Now, the pocket veto case that you mentioned: I agree, I took the
position in the executive branch, which I think this committee now
has in its hands, that a pocket veto is not valid where Congress,
the Senate and the House, have left an agent to receive that return
vetoeven though the House and the Senate are out, adjourned.
But the difficulty with allowing in that case Congressmen to sue
the President, saying that this pocket veto is unconstitutional
action, is simply thisthe theory was that the Congressmen had
official office which was somehow diminished by the President's
127
action. By parity of reasoning, the President could sue the Congress
very easily. If the Congress passes a bill over his veto, requiring the
President to do something which he regards as unconstitutional,
there is no reason under the reasoning of the other case why he
could not come into the Court down the hill and start a lawsuit to
declare the Congress' bill unconstitutional.
Indeed, if you adjust judges' duties in any way, there is no reason
why a judge could not sue, and in fact it has gotten to this point.
The Court of Appeals for the Seventh Circuit reversed two District
Court judges out there, and the judges petitioned for certiorari on
the grounds that their functions had been damaged. That is what
worries me. If everybody can sue everybody in the government on
the grounds of functions, then every governmental issue will come
into court instantly and be decided by courts, which would be an
enormous expansion of the power of the courts over the other two
branches.
In the pocket veto case, I did say explicitly not only that the
President and the Congress could fight it out, but that if a private
party brought an actionin fact, that is the way the original
pocket veto cases arose; Indian tribes claiming that they had lost
money that was due them because of an invalid pocket veto sued.
In that kind of a case, I have no problem at all with standing to
challenge a pocket veto. It is only when the Court gets into just
general issues between the branches so that every issue comes im-
mediately into court, and the courts decide every aspect of govern-
mental power; I think that is unfortunate. And I think that is con-
sistent with not only my standing rule, but my view of judicial re-
straint.
I cannot recall the case in which I talked about the PresidentI
did not think I said the President could delegate executive privi-
lege to others; I think I saidI would have to check thisI think I
said that there was reason to believe that those officials who are
part of the Presidency and who communicate with the President
might have executive privilege to that extent. I did not decide the
issue. What I was doing was protesting that the majority which did
decide the issue, decided it the other way, and I did not think it
was up before us, and I just suggested that it might go the other
way from the way they went if it were before us.
But I will have fuller answers to all of these questions, Senator. I
am not even sure I got all of your points down here.
Senator BYRD. Mr. Chairman, I am sorry if I have transgressed
on the understandings that were set forth at the beginning, and if I
have gone over my time, I am sorry.
The CHAIRMAN. NO, you have not.
Senator BYRD. I will not take the time of the committee in re-
sponding to the response at this time.
The CHAIRMAN. We understand the responsibilities as the Leader
of the Senate make it difficult for you to be here.
I am going to trespass 60 more seconds on the ranking member's
time here, just so you have time, or your staffyou asked about
the quote from Griswold and where I got it. It was on page 9 of
the neutral principles article, in the Indiana Law Journal, and I
will quote it:
128
Griswold, then, is an unprincipled decision, both in the way in which it derives a
new constitutional right and the way in which it defines the right or, rather, fails to
define it, where, left with no idea of the sweep of the right to privacy and have no
notion of the cases to which it may or may not be applied in the future. The truth is
that the Court could not reach its result in Griswold through principle. The reason
is obvious. Every clash between minorities claiming freedom and majorities claim-
ing power to regulate involves a choice between gratifications of two groups. When
the Constitution has not spoken, the Court will be able to find no scale other than
its own value preferences upon which to weigh the respective claims of pleasure."
Compare the facts in Griswold with the hypothetical suit by an electric utility
company and one of its customers to void a smoke pollution ordinance as unconsti-
tutional. The cases are identical. In Griswold, a husband and wife assert that they
have a right to sexual relations without fear of unwanted children. The law impairs
their gratification,
et cetera. That is page 9.
And then
Judge BORK. Senator, the entire discussion, I think, is premised
on the notion that the Constitution does not speakthat the Court
has not demonstrated that the Constitution speaks in this area.
And if that is true, that Justice Douglas' demonstration fails, then
that is where we are.
The CHAIRMAN. I will not read the quote, but in your speech pro-
vided by your office, at Catholic University in Washington, D.C.,
March 31, 1982, entitled, "Catholic University Speech", on page 4
is the other quote that I referred to.
Judge BORK. OK.
The CHAIRMAN. I thank my colleague from South Carolina, and
please proceed.
What we will do, Judge, because I know time is getting late, we
will do Senator Thurmond, Senator Kennedy, then take a break,
and then we will come back for as much time as you like.
Thank you.
Senator Thurmond.
Senator THURMOND. Thank you, Mr. Chairman.
Judge Bork, we have a great many people here who have a great
many questions. I will propound these questions rather fast. You
can answer them fast, unless you want to take more time; I will
leave that entirely to your judgment.
Judge Bork, in view of some of the comments concerning your
criticizing past Supreme Court decisions, I think it would be appro-
priate to have a statement from you on how you view the prece-
dents of the Supreme Court.
Would you please comment on what criteria you think are im-
portant in deciding whether to re-examine past Supreme Court de-
cisions?
Judge BORK. Yes, Senator. I think precedent is important, and as
I have explained, anybody with a philosophy of original intent re-
quires a theory of precedent.
What would I look at? Well, I think I would look and be absolute-
ly sure that the prior decision was incorrectly decided. That is nec-
essary. And if it is wrongly decidedand you have to give respect
to your predecessors' judgment on these mattersthe presumption
against overruling remains, because it may be that there are pri-
vate 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 conti-
129
nuity in the law. There is a need for predictability in legal doc-
trine.
And it is important that the law not be considered as shifting
every time the personnel of the Supreme Court changes.
So those are some of the factors I would consider as reasons to
uphold a prior decision. There are also reasons to overrule it. I
could list those factors, too.
Senator THURMOND. Judge Bork, much of the criticism lodged
against you stems from articles and speeches attributed to you over
the years which are critical of various rulings of the Supreme
Court. Do you feel a distinction should be drawn between your pri-
vate writings and any responsibilities you would have as a Su-
preme Court Justice?
Judge BORK. AS a professor, I felt free toand indeed was en-
couraged toengage in theoretical discussion. I primarily aimed
my writing at Supreme Court decisions which I thought were not
adequately explainedand explanation is the heart of judging.
As a judge, you cannot be as speculative. And I once said to one
of the members of this committee, when I was asked whether I
would behave in a courtroom the way I would in a classroom, and I
said no; in a classroom, nobody gets hurt. In a courtroom, some-
body always gets hurt, which calls for a great deal more caution
and circumspection than you are required to show when you give a
speech at Indiana or some other place.
Senator THURMOND. Judge Bork, some have said that you are a
conservative activist. My impression is that your writings and your
opinions on the Court indicate that you are a strong proponent of
judicial restraint.
Would you briefly explain to the committee what you believe is
the role of a judge in interpreting the Constitution and the laws of
this country?
Judge BORK. Well, as I said in my opening statement, Senator
Thurmond, I think the obligation is to do the will of the lawmaker.
If the lawmaker is Congress, writing a statute, or whether the law-
makers are the ratifying conventions of the Constitution, you de-
termine the will, the value, that was intended in a number of
waysfrom the text, which may not be all that clear sometimes;
from the legislative history and the expectations and public discus-
sions surrounding the enactment of the law or the Constitution;
from the way people at the beginning interpreted it, people who
could be expected to know more about it than we know now. In a
variety of ways, you manage to define a principle that you can
apply to modern circumstances.
Senator THURMOND. Judge Bork, in 1985, you stated,
If the Justices become convinced that a decision cannot be squared with the Con-
stitution, they ought to consider overruling it, but the Court should be careful. If a
particular decision has become the basis for a large array of social and economic
institutions, overruling it could be disastrous.
Now, the question is could you give me an example of a constitu-
tional decision that you would not be willing to overrule, even if
you concluded that decision was wrong?
Judge BORK. Well, I have to include some decisions that I do not
think are wrong, but I would not consider overruling them.
130
I gave the example already of the enormous scope of the com-
merce clause. I think it is much too late to overrule any of that.
Senator THURMOND. By the way, do not drop your voice too low,
please.
Judge BORK. I am sorry.
I think I also gave the example of the legal tender cases about
paper money. But for example, there have been Bill of Rights
cases, the freedom of the press casesa whole industry is built up
around an understanding of the freedom of the press. It is too late
to try to, even if one wanted toand I have no desire to; I think
those cases are correcteven if one wanted to, one simply could
not go back and tear up the communications industry of this coun-
try.
Senator THURMOND. Judge Bork, you have written that, and I
quote,
One of our constitutional freedoms or rights clearly given in the text is the power
to govern ourselves democratically. Every time a court creates a new constitutional
right against government or expands without warrant an old one, the constitutional
freedom of citizens to control their lives is diminished.
Now, the question is, could you elaborate on why this reasoning
leads you to conclude that activist judges will not truly expand
rights and freedoms, but instead will merely redistribute them?
Judge BORK. All right, Senator. I will be glad to talk about that.
The Constitution clearly gives majorities the right to rule large
areas of life simply because they are majorities. And that is a free-
dom, that is a liberty, of the majority. The Constitution also says
there are some things no majority should be allowed to do to a mi-
nority or to an individual. That is fine. That is known as the reso-
lution of what has been called "James Madison's dilemma".
But if a judge steps into an area that the Constitution says is for
majorities and says the majority may not do these things, despite
what the Constitution says, then he has taken away a majority
freedom and placed it in the minority. That is merely a redistribu-
tion of liberty, not an increase of it.
Senator THURMOND. Judge Bork, the ninth amendment to the
Constitution provides that the enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others
retained by the people. What do you believe the ninth amendment
means?
Judge BORK. That is an extremely difficult question, Senator, be-
cause nobody has ever to my knowledge understood precisely what
the ninth amendment did mean and what it was intended to do.
And throughout almost all of our history, no court ever relied upon
it. And in fact, the Supreme Court has yet to rely on it. Justice
Goldberg did in one case.
I have seennot mastered, but seensome historical research
appearing in the Virginia Law Review which suggests that what
this amendment means is that the enumeration of Federal rights
in the Bill of Rights shall not be construed to deny or disparage the
rights retained by the people in their State constitutions. And that
is the only explanation that has any plausibility to it that I have
seen so far.
Senator THURMOND. Judge Bork, comments have been made that
you take a restrictive view of the first amendment and that many
131
years ago, you were of the opinion that only political speech was
protected. Have your views changed in this area, and would you
briefly tell the committee what areas of speech you think fall
within the protection of the first amendment?
Judge BORK. Well, Senator, I should point out I am a little sur-
prised that what was an academic exercise and engaging in a
debate and trying out a theory has become somehow the core of my
philosophy. The article itself said at the end that these remarks
are intended to be tentative and exploratory. At the moment, I do
not see how I can avoid them.
My views have changed for the simple reasonI was looking for
a bright-line test by which judges could decide which speech was
protected and which was not. I have since become persuadedin
fact, I was persuaded by my colleagues very quicklythat the
bright-line made no sense; it would be impossible to follow. There is
no reason, if somebody wants to engage in moral discourse to say it
is not protected unless he ends it by saying, "and therefore, I pro-
pose that we pass a law."
So my bright-line eroded, and I now thinkI have for some
timefirst amendment protection applies to moral discourse, it ap-
plies to scientific speech, it applies to news, it applies to opinion, it
applies to literature. I gave up my attempt to construct a new
theory there.
Senator THURMOND. Judge Bork, I have read that your critics say
that you would deprive a divorced, noncustodial parent of visitation
rights with his children. I believe the criticism arose because of
views you expressed in Franz v. United States, a case involving an
individual in the government's witness protection program. Would
you tell the committee your position in this case?
Judge BORK. In that case, Senator, Congress had passed a witness
protection statute which, as I recall, did not deal with this issue. In
this case, it was a witness who married a divorced woman with
children, and they disappeared in this programand the divorced
husband could not find his children. Now, it seemed to me there
were two solutions to that. One, which was my idea, was to get that
issue back in Congress, because Congress had not faced it, and I do
not know, really, whether it wanted to do that. And therefore, I
said I am not at all sure that this program does not violate Penn-
sylvania domestic relations law, and it is not clear that Congress
intended to preempt the domestic relations laws of the States.
I thought a holding along those lines would put the issue back in
Congress where it could be considered and a legislative solution
worked out, and it also gives this fellow his rights.
But a majority of my Court decided to create a new constitution-
al right, right there. I think you reach a constitutional right, new
or old, only ifyou do not reach it if you can first get the Congress
of the United States to decide whether they really want to do this
thing or not; then you face the constitutional question.
Senator THURMOND. Judge Bork, as you know, the Supreme
Court's decision in Brown v. Board of Education is one of the land-
mark decisions of the century. You have said that you think Brown
was correctly decided, and you have praised Brown as an example
of the Court applying an old principle according to a new under-
standing of a social situation.
132
Judge Bork, does this conflict with your views on how the consti-
tutional law should be read?
Judge BORK. NO, I do not think it does, Senator, but let me make
a preparatory remark.
I have seen some evidence that the likelihood that the amend-
ment was intended to stop segregation is greater than I had origi-
nally thought, and that Plessy v. Ferguson and the later segrega-
tion laws came afterwards, when the Supreme Court had changed
and the legislatures had changed in the South. So that as a matter
of original intent, I am not at all sure that segregation was not in-
tended to be eliminated.
But let me proceed on the assumption that separate but equal
was intended by those who framed the 14th amendment. The rule
they wrote was no individual shall be denied the equal protection
of the law. They may have written that rule on the assumptiona
background assumptionthat you could get equal protection or
equality with separation or segregation.
If they did, then by 1954 it had become abundantly clear that the
background assumption was false. You cannot get equality with
segregation. At that point the Court is faced with a choice: Does it
enforce the ruleequal protectionor enforce the background as-
sumption that the framers and ratifiers made. I think it is clear
that you have to enforce the rule, the background assumption
being false, and that leads directly to no segregation, and it leads
to Brown v. Board of Education.
Senator THURMOND. Judge Bork, it has been reported that be-
cause of comments you have made in the Bakke case that you
oppose affirmative action programs. Is that in fact your position?
Judge BORK. There are two kinds of affirmative action. The origi-
nal version of affirmative action, which I fully supported, was that
institutions should reach out to inform minorities and so forth that
opportunities of certain sorts existed that they may not know exist-
ed, and to reach out and try to identify and help qualified individ-
uals into those.
Later on, those programs begin to change into programs about
specified numbers of people being brought in differently. That
began to worry me. I certainly would not have minded preferential
treatment by private institutions for a period of time, until we
could bring blacks and other racial minorities into the American
mainstream.
It did begin to worry me, however, if those preferences became
permanent, because that leads to resentment from other groups. It
will lead to demands for preferences from other groups; it will lead
to individuals feeling that they earned something and will never
get it because they are not of the right ethnic group. That worries
me.
Senator THURMOND. Judge Bork, comments have been made that
you oppose certain rights of women. Justification for this attack is
founded on your purported views that the equal protection clause
should not be used to protect a woman's rights.
Do you feel that the equal protection clause is appropriate for
the protection of women's rights, and would you please address this
criticism?
133
Judge BORK. Yes, certainly, Senator. At the time I wrote about
the equal protection clause, the Court had never extended the
clause to women. But in addition to that, as I think I said in reply
to another Senatorperhaps, the Chairmanthe Court was in the
process of saying it applies to blacks, it applies to illegitimate chil-
dren, it applies to somebody else, and they were picking groups
which I thought was a wrong way to apply it. I think you apply it
by requiring a reasonable basis for any distinction made between
individuals or groups.
Now, in the case of race, it will be impossible, virtually, to find a
reasonable distinction that will justify discrimination.
In the case of gender, it will depend on the particular issue.
While it is possible to say in the area of race, no difference of treat-
ment, it is not entirely possible to say that in the case of gender,
simply because of physical differences. Combatmaybe the equal
protection clause does not require that.
But in that sense, requiring a reasonable basis for any distinction
madeyes, the clause applies to women; it applies to every person.
Senator THURMOND. Judge Bork, some have said that you would
deny individuals and groups access to the courts. I realize that the
area of determining standing to maintain an action is very com-
plex. However, would you briefly comment on this area?
Judge BORK. Yes, Senator. StandingI will comment briefly, as
you suggest.
I think you will find my decisions are squarely in line with the
decisions of the Supreme Court on standing, which is an important
concept. And in particular, I think my views are almost entirely
those that are expressed in his opinions by Justice Lewis Powell. I
do not think there is anything more restrictive about me than
about most judges.
Senator THURMOND. Judge Bork, recently a report was received
that a senior U.S. judge had raised a question about your integrity.
Apparently after hearing the case of Vander Jagt v. O'Neill, it was
reported that after an agreement on the disposition of the case, you
were chosen to write the opinion for the panel. However, the opin-
ion you wrote, while upholding the result, did so on grounds other
than those which had been discussed and agreed to by the other
judges.
As a result, a different opinion was issued by the other two
judges, and you wrote a concurring opinion. The implication is that
you tried to force your views on the panel. Would you tell us what
actually happened?
Judge BORK. Yes, Senator. I do not understand what happened
with this Judge Gordon, who wrote that letter. The fact is any
judge, when he sits down to write, sometimes has the experience
that it will not write that way; you agreed on a ground, and it will
not write that way. That is what happened in this case.
I then went back to Roger Robb, who was the senior judge on the
panel, and talked to him about it and explained to him I thought a
standing issue would go much better than a political question doc-
trine issue or a speech and debate issue. And I gave him the rea-
sonsI will not spell them all out here, but they are in the papers.
134
He agreedI thought. I left, and drafted it. I should have written
to Judge Gordon then. He was down in Kentucky. I did not. I re-
drafted it.
The fact is that Judge Robb's secretary remembers me coming in
to have that conversation; my clerks remember me going up and
coming back and saying that Judge Robb had agreed.
I then sent theI have some documents about this here, Senator,
if I can find themI then sent the draft around to Judge Robb,
who was in the hospital with a broken hiphe had fallenand to
Judge Gordon.
The letter I sent with the draft to Judge Gordon says, "It occurs
to me too late, that I should have notified you in advance that I
had changed the rationale in the Vander Jagt case to one of lack of
standing. After I got started on the opinion, it became apparent
that it was harder to dispose of the case under either the political
question doctrine or the Speech or Debate Clause. The Supreme
Court's opinion in Valley Forge, on the other hand, made it rela-
tively easy to dispose of the case on the standing ground. This tack
was also indicated because there are some en bane rehearings [re-
hearings of our full Court] coming up in this circuit for which the
other two grounds might have implications."
I did not want to seem to be deciding the en bane court's cases
for them in advance.
"That would have complicated the writing of the opinion based
upon political question or Speech and Debate."
"In any event, I regret not having apprised you of my thinking
earlier in the process of writing."
"Best wishes, sincerely."
So we went on. Then Judge Gordon was assigned the task of
writing the opinion on yet a fourth ground, one that had not been
discussed at the conference, and there is a memorandum from me
here to both of those judges which is too long to read at the
moment
Senator THURMOND. What is the date of that letter?
Judge BORK. The letter to Judge Gordon is September 24, 1982; it
is when I transmitted theoh, I am sorryI appear to have mis-
stated. I sent the draft to both Judge Robb and Judge Gordon, and
then a week later I sent this letter explaining why I had changed
the rationale to Judge Gordon. Judge Gordon then redrafted the
opinion on a new basis and sent it around and I wrote a concurring
opinion. Now, after all of this had happened and after an experi-
ence, which Judge Gordon now says caused him to think that I was
trying to sneak an opinion past him. He sent his draft backand
there was never any discussion of thishe sent his draft back and
closed the letter with "May I take this opportunity of expressing to
you my pleasure in sitting with you last March and the making of
your acquaintance, and I wish for you and yours a happy and
joyous Yuletide Season," which did not alert me to the fact that he
thought he had, in any way, been run around.
But the accusation is preposterous in any event, Senator, because
when I circulate a draft, the other two judges read it and their
clerks read it. There is no way to write a draft that they are going
to miss and will go out and become the law. In addition to that,
there is a rule in our circuit that when the other two judges have
135
concurred in your draft, you circulate the draft to the full Court,
which I think was 11 judges at that time, and their clerks all read
it.
So, the thought that anybody would try to run a minority opin-
ion through that full Court is just preposterous. There is nothing to
the charge. The memories of the people involved, the documenta-
tion, and the practicalities of the circumstances indicate that it is
justI do not know what it is but it is certainly a misunderstand-
ing.
Senator THURMOND. Judge, would you like those letters to be
placed in the record?
Judge BORK. Yes, I will do that.
Senator THURMOND. I ask unanimous consent that those letters
be placed in the record.
The CHAIRMAN. Without objection, they will be placed in the
record.
[Material follows:]
136
- James F. Gordon
ijlot Unll.d q i i l . i Dlalikl J..d,.
422 Sptlts noad, Unit 5
Louisville, Kentucky 40207
August 24, 1987
Tlie Honorable Joseph Biden

United States Senator
Senate Office Building
Washington, D.C. 20510
Dear Senator Biden:

You may, after reading this communication, have
no interest in pursuing the same further; however, I
feel duty bound to communicate the facts set forth
herein for your consideration.
Perhaps I should first make clear what this letter

is not. It is not a complaint against the legal
position taken by Judge Bork in the litigation herein-
after discussed, for he had the perfect right to take
any position in the matter legally he wished. Nor is
this letter a complaint arising from Judge Bork's
well known conservative legal views, for even I am
sometimes referred to in the local media as the "crusty
old conservative."
Rather, it is a story of actions taken by Judge

Bork which I believe reflect serious flaws in his
character. So serious, in my judgment, that they go
to his basic honesty.
This is the story. On several occasions between

1972 and 1983, I was designated, pursuant to 28 U.S.C.
294(d), to sit on the United States Court of Appeals
for the District of Columbia in order to render
assistance to them in a more speedy disposition of
!their appellate caseload. One such occasion was in
the spring of 1982 when I was designated to sit with,
among others, Judges Roger Robb and Robert Bork, to
hear, among other appeals, the important case of Guy
Vander Jagt, et al. v. Thomas P. "Tip" O'Neill, Jr.,
et_aIJL, 699 F.2d 1166, cert, denied, 464 U.S. 823
(1983). Copy attached. I believe this was the first
appeal Judge Bork heard after his appointment to the
federal bench, for I recall that on the morning of
March 19, 1982, I found him understandably lost in
the hallway and directed him to the robing room of the
Court.
After hearing the arguments in the Vander Jagt

case. Judges Robb, Bork and I retired to the conference
room to voice our individual beliefs as to what the
Court's final holding should be. All three of vis were
in instant agreement that the relief be denied
Appellants Vander Jagt. Judge Robb directed our
attention to the fact that he had written the prior
opinion of the D.C. Circuit in Riegle v. Federal Open
Market Committee, 556 F.2d 873 "(1981), which he, Judge
Robb, considered to be the law of the Circuit. I
agreed.
After discussion, it was agreed by all and otdcred

by Judge Robb that Judge Bork would write the unanimous
opinion of the Court, denying relief to the Appellant
Vander Jagt on the ground of "remedial discretion,"
relying on the Riegle case. We then turned our
attention to the other appeals heard that morning,
their decision and opinion writing assignments thereof.
137
As we were departing the room at the end of our

conference, I recall Judge Bork alluding to the "lack
of standing doctrine," to which both Robb and I,
particularly Robb, took immediate vigorous exception
and reiterated our views that the Riegle case con-
trolled and was the opinion of the majority of the
Court. There is no way Judge Bork could have misunder-
stood Robb's and my position.
Ten days later, I returned to Kentucky and heard
nothing further from Judge Bork in the way of his
proposed majority opinion in the Vander Jagt case.
Months passed, and I began to become concerned lest the
Court would not get its order released before the
Congress adjourned December 31, 1982 when, though the
issue would not become moot, it seemed to me it would
be "undercut" in importance and result in somewhat
unfair delay toward the Appellants Vander Jagt, who
were basing the thrust of their case on the facts exist-
ing in the House of Representatives as it wag con-
stituted in that session.
Though I was concerned, I took no steps of inquiry,

as that was Judge Robb's responsibility as the presid-
ing Judge of our panel. I did not then know that Robb
had taken senior status May 31, 1982, and Bork had
become the ranking Judge of our panel.
Finally, around the first part of November, 1982,

I received a proposed majority opinion from Judge Bork,
denying relief to the Appellants on the narrow ground
of "no standing." There was no note or cover letter,
just the bare bones opinion. I was shocked, to say
the least, at the tenor of the opinion; however, my
first thought was that perhaps Judge Bork had, since
my departure for Kentucky, changed Judge Robb's
opinion as to the doctrine of "no standing."
Of course, Judge Bork was freely entitled to his

individual judicial opinion as to "no standing" but
he was not entitled to make it my opinion or Robb's
opinion without our individual consents.
Recognizing that if, in fact, Bork had changed

Robb's thinking, I would be required, in trutli to my
own beliefs, to write a sole concurring opinion deny-
ing relief to Appellants Vander Jagt on the ground of
"remedial discretion," I concluded to telephone
Judge Robb to ascertain the true situation. When I
did so, I discovered Judge Robb to be hospitalized with
what I was advised was a serious cancer condition and
that he was unavailable for a telephone conversation
with me. I then learned, for the first time, that
Judge Robb had taken senior status. Immediately, I
instructed my law clerk to contact Judge Robb's senior
law clerk and instruct him or her in my name to visit
Judge Robb if possible, and acquaint Judge Robb
generally with Judge Bork's submitted proposed majority
opinion and ascertain his (Robb's) reaction thereto.
Several days later I received a call from another

Judge of the D.C. Circuit Court of Appeals advising ma
that Judge Robb was upset by developments in the Vander
Jagt case and instructing me, on Judge Robb's behalf,
to immediately prepare for the two of us a majority
opinion on the basis of "remedial discretion" and to
advise Judge Bork to that effect. I was admonished
to accomplish this task so that our final order could
be issued before the end of the calendar year 1982.
I accomplished this task and the final order was

signed by Robb and me on December 23, 1982, and the
opinions were issued February 4, 1983, being delayed
by the process of preparing a majority opinion and
circulating it to Judges Robb and Bork. Judge Bork
138
wrote anew his individual concurring opinion on "no

standing" after receiving the majority opinion on
"remedial discretion."
In sum, I now recall (a) Judge Dork's actions by

way of changing his original position, unknown to
Judge Robb and me; (b) Bork's delay in preparing his
so-called majority opinion until late in 1982; (c)
Bork's failure to dispatch his opinion with some
explanatory cover letter; (d) my absence as the junior
Judge in Kentucky; (3) Judge Robb's illness from
cancer, from which he subsequently died; (f) the
creation of a "time of the essence" situation. These
considerations give me grave reason to suspect that
perhaps Judge Bork intended to have his narrow "no
standing" view become the majority opinion of the Court
and the law of the Circuit when, in fact, it was the
minority opinion.
As a man who has been honored by appointment to

and service as a Judge of the United States, I do not
believe one who would resort to the actions toward his
own colleagues and the majesty of the law as did Judge
Bork in this instance, possesses those qualities of
character, forthrightness and truthfulness necessary
for those who would grace our highest Court.
Senator, you and your Committee may give this

such weight as you wish, but I shall be forever con-
vinced that there was a design and plan in Judge
Bork's actions and activities. I apologize for the
great length of this communication, but I could not
conceive of any less lengthy way to give you the entire
story for your consideration.
With highest personal respect and with every good

wish, I remain,
Sincerely,
James F. Gordon
Senior Uni ted States
District Judge
JFG:gel
139
UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT
WASHINGTON 0 C 2OOOI
ROSCRT H SORK
iTia STATCS ctacwir jut
M E M O R A N D U M
TO: Judge Robb

FROM: Judge Bork '/Zri _,
RE: No. 81-2150 Guy Vander Jagt, et al. v.
Thomas O'Neill,~"JrT
DATE: October 1, 1982
Attached is the letter I sent to Judge Gordon.

140
Falmouth, Mass.
October 5, 1982
MEMORANDUM to Judge Bork

Judge Gordon
RE: Vander Jagt v. O'Neill
No. 81-2150
FROM: Judge Robb
My post-conference memorandum in this case said:

At conference we agreed to affirm the District
Court. Judge Bork offered to prepare the opinion.
The opinion will assume that the plaintiffs have
standing but will conclude that they are out of court
for numerous other reasons.
Now I am surprised to have Judge Bork's proposed opinion,

holding that the plaintiffs are out of court because they have
no standing to sue. Although I agree with the result I regret
that I cannot concur in the opinion. I would apply the Riegle
theory to this case. The Valley Forge case, relied on in the
proposed opinion, was not a case of a congressional plaintiff,
and I see nothing in it that suggests that the Court would not
have approved the application of the Riegle theory in a
congressional plaintiff context.
I think it can be argued here that in many ways plaintiffs
have suffered injury. Although the proposed opinion says their
votes have not been nullified, it is certainly true that the power
or weight of their votes has been substantially diminished. I
am not prepared to say that a plaintiff has standing to sue
if his injury requires major surgery, but he will not be heard
if he has suffered only bruises and contusions.
If Judge Gordon adheres to our reasoning and decision at
conference, I suggest that he prepare an opinion along those
lines. Judge Bork may of course write separately.
R.R.
141

WASHINGTON D C 2OOO!
ROBERT H BORIC
ITCO STATCfl CIUCUIT JV
M E M O R A N D U M
TO: Judge Robb

Judge Gordon
PROM: Judge Bork
RE: No. 81-2150 Guy Vander Jagt, et al. v. Thomas
O'Neill, Jr.
Since my earlier failure to communicate is largely

responsible for the confusion into which this case has been
plunged, I think it advisable to set out my current thoughts
about the case.
1. As explained in my prior memorandum, I think it easier
to deal with this case on the standing doctrine than on the
political question doctrine or the Speech or Debate Clause.
That is true both for doctrinal reasons and because the latter
two questions are much involved in a case we are to hear en
bane later this month.
2. Raving reached this conclusion in the course of

preparing the opinion, I visited Judge Robb in his chambers and
explained that I preferred to dispose of the case on standing
grounds by returning .to the complete-nullification-of-a-vote
test adopted by the per curiam opinion in Goldwater v. Carter.
I understood Judge Robb to agree to this strategy.
Inexcusably, I neglected to write to Judge Gordon about my
changed thinking. Judge Robb does not remember my conversation
with him, does not doubt it took place, but is sure he must
have misunderstood what I proposed.
3. Judge Robb suggests that Judge Gordon prepare an

opinion affirming the district court on the basis of the
circumscribed equitable discretion doctrine elaborated in
Riegle. This is yet a fourth ground for affirmance and one not
discussed at our conference. I do not object to it for that
reason, however. Nor do I have any problem with the idea of
turning my opinion into a concurrence.
86-974 0 - 8 9 - 7
142
Page Two
4. I do not agree that the premise of Riegle can any

longer be considered intact. The Supreme Court's Valley Forge
decision unmistakably demonstrates that separation-of-powers
concerns are to be implemented through the concept of
standing. Valley Forge, which came after Riegle, is merely the
latest in a long line of Supreme Court decisions which make
that clear. I do not believe there is any significance in the
fact that Valley Forge did not involve a congressional
plaintiff. Indeed, separation-of-powers concerns are even
stronger when the plaintiff is a congressman.
5. Assuming that Judge Gordon does prepare a majority

opinion resting on the doctrine of circumscribed equitable
discretion, I will feel free, as I did not when writing for the
court, to express my views more fully. I think I should
indicate now what those views are and how my concurring opinion
is likely to differ from the present draft. I would, as
mentioned above, point out that the decision in Valley Forge
removes the foundation upon which Riegle rests. I would
explain my reasons for thinking that the doctrine of
circumscribed equitable discretion incorporates erroneous
criteria and permits too many suits by legislators. I would,
at a minimum, urge a return to the test of GoIdwater v. Carter
and would, probably, go on to suggest that Kennedy v. Sampson
was wrongly decided and that there should be no such doctrine
as legislator standing.
I mention these things now out of what may be an excess of

caution bred of my failure to communicate fully earlier in the
preparation of my opinion. In no sense do I wish to be
understood as in any way displeased that one or both of you
cannot agree with what I have written. I welcome the idea of
writing a concurrence precisely because I will be able more
freely to express what I think about this area of the law.
6. If there is any danger of mootness in this case, I do

not think it could arise until January 3, 1983, when a new
House of Representatives will come into existence. However, I
do not think the case will become moot even then.
7. Despite my own failure in the past, I would appreciate
learning as soon as Judge Gordon has decided whether the
majority opinion is to rest on Riegle so that I can be ready
with my concurrence and not delay the issuance of our decision.
I apologize to both of you for not making matters clearer
as I went along.
143
fot&t* 3btrtct (Court

ron TMI
JBcsicnt ^tstrtct of |Rcniifcjiy
Owensboro, Kentucky 42302

December 17, 1982
The Honorable Robert H. Bork

Judge, U. S. Court of Appeals
District of Columbia Circuit
3rd and Constitution Avenue, N.W.
Washington, D. C. 23001
RE: Vander Jagt v. Speaker O'Neill, No. 31-2150

Dear Judge Bork:
I have not as yet received your most recent re-

write in the above-styled matter; however, in the interest
of tine, I enclose herewith two copies of the final draft
of my opinion.
The final draft attached hereto contains some changes
on pages 3 and 8 of the opinion and on Footnote pages 9, 10,
and 11, plus the further fact I have rewritten the same so
that it becomes now only my opinion as opposed to mine and
Judge Robb's opinion.
Inasmuch as you are now, in Judge Robb's absence, the
presiding Judge, I assume that you will see to the proper
processing of my opinion through the Clerk's office there,
and that there is nothing further for me to do. I would
however appreciate it if you would have your law clerk give
us a ring here when you have received this.
May I take this opportunity of expressing to you my
pleasure in sitting with you last March and the making of
joyous Yuletide Season.
Sincerely,
JFG/ddt
Attachment
144
March 19, 1982

No. 81-2150
FROM: Judge Robb
At conference we agreed to affin the District

Court. Judge Bork offered to prepare the opinion. The opin-
ion will assume that the plaintiffs have standing but will
conclude that they are out of court for numerous other
reasons.
R.R.
145

WASHINGTON O C 2OOOI
ROBERT H BORK
Tto n i r i i CIKCUIT J U M I
M E M O R A N D U M
TO: Judge Robb

Judge Gordon
FROM: Judge Bork
RE: No. 81-2150 -- Guy Vander Jagt, et al. v.
Thomas O'Neill, Jr.
DATE: September 17, 1982
Attached is my proposed opinion in the above-

mentioned case for your review and comment.
146

DISTRICT OP COLUMBIA CIRCUIT
WASHINGTON 0 C 2OOOI
NOSCRT H BONK
ITI* ITlTfS CMCUlt JW
September 24, 1982
The Honorable James F. Gordon

United States District Court
Western District of Kentucky
P.O. Box 435
Federal Building
Re: No. 81-2150 -- Guy Vander Jagt, et al. v.

Thomas O'Neill,~Jr7
Dear Judge Gordon:
It occurs to me too late that I should have notified
you in advance that I had changed the rationale in the
Vander Jagt case to one of lack of standing.
After I got started on the opinion, it became apparent
that it was harder to dispose of the case under either the
The Supreme Court's opinion in Valley Forge, on the other
hand, made it relatively easy to dispose of the case on the
standing ground. This tack was also indicated because there
are some en bane rehearings coming up in this circuit
for which the other two grounds might have implications.
That would have complicated the writing of the opinion
based upon political question or Speech or Debate.
In any event, I regret not having apprised you of

my thinking earlier in the process of writing.
Best wishes.
Sincerely,
Robert H. Bork
RHB/hh
147
Senator THURMOND. Judge Bork, I understand it in your writings
on antitrust, you have suggested a fairly lenient standard for hori-
zontal mergers. Nevertheless, would you explain how, as a judge,
you have supported the enforcement of the stricter prevailing
standard of horizontal mergers?
Judge BORK. I have had, I think, Senator, only one merger case.
It was by the Federal Trade Commission against a couple of
makers of aircraft transparencies. The market share was fairly
high. I cannot recall exactly what it was. I ruled for the Federal
Trade Commission.
Senator THURMOND. Judge Bork, my time is almost up. I just
have about 3 or 4 minutes. Judge Bork, some of our critics have
accused you of taking a very broad view of the President's powers
and a narrow view of the powers of the Congress. With that in
mind, I would like you to comment on the memorandum you wrote
to Attorney General Levi in 1976, in which you offered that some
uses of the pocket veto were constitutionally suspect and should
not be allowed or followed by President Ford.
Is this an example in which you are for a narrower view of Presi-
dential power than some of your colleagues in the Ford administra-
tion and is it true that President Ford eventually issued a state-
ment essentially adopting your position?
Judge BORK. That is all true, Senator. Senator Kennedy was the
plaintiff in a case known as Kennedy v. Sampson, challengingI
think it was a pocket veto, wasn't it, Senator, and I was then Solici-
tor General. I chose not to appeal that case or try to get that case
into the Supreme Court because I thought it was a terrible case
and we would lose it.
I then communicated my decision on that to the Attorney Gener-
al and executive branch. The White House knew about it. I cannot
remember who I talked to. They began to use some form of an in-
termediate veto which said that something like this is a return
veto but if it is not, it is a pocket veto, or vice versa, something like
that. I got disturbed by that because, since I had not taken the
other case up or tried to get it up, I did not think they were free to
use it.
The Attorney General, Mr. Levi and I, discussed it, in which dis-
cussion I told him that if the administration insisted upon going
ahead with those cases and took them to the Supreme Court, I
would not participate. I would not sign the brief and I would not
argue the case. We then, in my office, prepared a legal memoran-
dum to the White House explaining that the pocket veto ought to
be interpreted according to the purpose for which it was designed.
It was clearly designed to prevent a Congress from passing a law
and leaving town so that the President had no opportunity to give
a return veto. When the Congress leaves behind an agent to receive
a return veto, it seems to me that purpose is satisfied and the
pocket veto should not be used. That was a position I took inside
the administration, over some opposition, but ultimately we per-
suaded the President to that position.
Senator THURMOND. Judge Bork, in a recent interview on June
10, 1987, you indicated that and I quote, "The commerce power of
the federal government had been expanded well beyond probably
what the ratiflers intended. I think it had to expand beyond that as
148
this Nation grew and became more unified. But the change in the
commerce clause is almost entirely a Supreme Court development."
The question is, do you believe that this expansion by the Court
was proper?
Judge BORK. Well, Senator, I have not been in that position. I
really do not know. It was inevitable, let me put it that way. The
nation needed a strong federal government with strong powers. For
a time, justices of the Supreme Court objected to that. But the fact
is, the appointment power means that sooner or later, the com-
merce clause was going to be interpreted in a way that met the
needs of the Nation. That seems to me to be just the way this
Nation grew. It seems to me an inevitable development.
Senator THURMOND. Judge Bork, during your confirmation hear-
ing on your nomination to the second court in 1982, you testified as
to the events surrounding the firing of Archibald Cox and assur-
ances that you made to those involved in the investigation by the
special prosecutor's office. Now, there are individuals who have ex-
pressed a different version regarding the assurances you made con-
cerning the investigation. Would you please comment on this
matter?
Judge BORK. Well, rather than go through the entire episode, I
think they are focusing upon one meeting. After the firing, on Sat-
urday, October 20th, we met either the next day on Sunday or the
next day on MondayI used to think it was Sunday because I re-
membered the Department of Justice was empty, but now I find
out Monday was a holiday so maybe it was empty for that reason
in any event, Assistant Attorney General Henry Peterson and I
met with Mr. Cox's deputies, Mr. Ruth and Locavara.
As I understand the difference in recollection, it is whether or
not tapes were specifically mentioned at that meeting. It was my
recollection they were. The others say not. But I think there is a
common recollection, at least it is shared by a lot of people at that
meeting, that I said they were to go forward as before and that if
we were interfered with, we would all resign. That seems to me to
include tapes, whether or not they were specifically mentioned, be-
cause I thought they had been.
Senator THURMOND. Judge Bork, I have one brief question and I
will be through. It appears to me that much of the attack on you is
based on selective citation and taking your statements out of con-
text. Is there any particular area where this has occurred on which
you would like to comment?
Judge BORK. Senator, I think there has been a lot of it. I think I
will get to comment on it as we go through these hearings. I do not
think I have time to discuss all of them right now but thank you
for the opportunity.
Senator THURMOND. YOU can save it for later if you want to.
Judge BORK. Pardon me?
Senator THURMOND. Save it for later if you want to.
Judge BORK. All right. Thank you for the opportunity, but I
think I will wait a little bit.
Senator THURMOND. Thank you very much, Judge, and that com-
pletes my questions. Mr. Chairman, thank you.
The CHAIRMAN. Thank you, Senator. I think maybe it might be
appropriate here to take a short break. Before we do, let me tell
149
you what I would like to try to finish tonight and if you would con-
sider it, Judge. I would like to get three more of my colleagues in,
Senator Kennedy, Senator Hatch, and Senator Metzenbaum.
Senator METZENBAUM. Senator Biden, I would prefer not to do
that.
Senator METZENBAUM. I prefer to start in the morning.
The CHAIRMAN. Well, then, that is apparently what
Senator METZENBAUM. Paul Lucas and I always agree.
The CHAIRMAN. I apologize. Is that agreeable with you, Judge?
Judge BORK. Yes, it is, Senator.
The CHAIRMAN. Good. You helped me out a lot there. What we
will do is we will break until 5 and then we will come back and we
will do at least two more rounds of questioning. The hearing is re-
cessed until 5.
[Recess.]
The CHAIRMAN. The hearing will come to order. We left off with
Senator Thurmond and now it is Senator Kennedy's opportunity to
question. Senator Kennedy.
Senator KENNEDY. Thank you very much, Mr. Chairman. Judge
Bork, I wanted to pick up, for a moment, one aspect of the line of
questioning of the Chairman. As I understand your discussion of
the Griswold case, your view is that there is no right to privacy in
the Constitution. It is up to the legislature. Doesn't that lead you to
the view that you would uphold a statute requiring say, compulso-
ry abortion, if a legislature enacted it by majority?
Let me just continue. Some of your strongest supporters have
made an issue of the allegation that there may be compulsory abor-
tion in the People's Republic of China. As I understand it, under
your peculiar constitutional philosophy, you would be prepared to
uphold compulsory abortion in America if some future legislature
enacted it. We have just heard you say that the State of Connecti-
cut had the right to pass a law prohibiting married couples from
using birth control.
I think the real question is, Where do you draw the line? I think
you have opened up a whole can of worms, quite frankly, here.
What about a State statute that says families with more than two
children cannot send their children to public schools? What about
all sorts of other statutes that a legislature might enact with some
theoretically-plausible rationale, such as the Connecticut statute,
but which would obviously violate the people's most fundamental
rights, including the right to privacy?
I believe, Mr. Bork, that in your world, the individuals have pre-
cious few rights to protect them against the majority and I think
this is where the Bill of Rights comes in and what the Bill of
Rights is all about, that there are some things in America which
no majority can do to the minority or to the individuals. The provi-
sions of the 14th amendment under section 1, include "nor shall
any State deprive any person of life, liberty or property without
the due process of law."
Isn't included in the concept of liberty, the right to privacy? In
reading that term with the ninth amendment, which provides that
"the enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people," I
150
would be interested in your reaction or response because it seems
to me that the issues of privacy have been carefully enshrined
within the Constitution by court decisions over the period of the
last 60 years.
They are rights which are enshrined in such a way and respected
and valued so importantly that I would think Americans would
have serious questions, I certainly do, about placing someone on
the Supreme Court that is willing to find some kind of a rationale,
or appears to find some rationale, not to respect it.
Judge BORK. Senator Kennedy, at the outset let me say this. I
have the greatest respect for the Bill of Rights and I will enforce
the Bill of Rights. I have enforced the Bill of Rights. What we were
talking about here was a generalized, undefined right of privacy
which is not in the Bill of Rights. Now, as I said in my opening
statement, a judge has to apply the law and the law comes from
the text, the history and the structure of the Constitution.
There are important aspects of privacy in the Bill of Rights. This
Congress has increased privacy in many ways by statute. As a soci-
ety, we value it, but as a judge, I do not think I can tell the Ameri-
can people they may not have a law that in no way conflicts with
the written and historical Constitution. Now, you raise the ques-
tion of
Senator KENNEDY. I want you to complete your answer. What I
was really springing from is your response to the chairman's ques-
tions with regard to the Griswold. We remember that the majority
in that case found that the provisions in a State statute that re-
stricted married couples from using contraception would be viola-
tive of their right to privacy. You've indicated that you took issue
with the rationale.
I think you continued and said, well, perhaps someone can come
up with a different rationale so that you might be able to reach a
different decision. But in response, I think, to the chairman's ques-
tion, you talked about the importance of the majority in the State
legislatures. You did not find, at least at this time, that you were
prepared to state a philosophy or legal justification for the overrul-
ing of that Connecticut statute. I believe, quite frankly, following
that rationale, that you could lead yourself into the kinds of situa-
tions which I've posed here. If I am wrong, I would like to hear
from you on that.
Judge BORK. Well, let me repeat about this created, generalized
and undefined right of privacy in Griswold. Aside from the fact
that the right was not derived by Justice Douglas, in any tradition-
al mode of constitutional analysis, there is this. The right was
notwe do not know what it is. We do not know what it covers. It
can strike at random. For example the Supreme Court has not ap-
plied the right of privacy consistently and I think it is safe to pre-
dict that the Supreme Court will not.
For example, if it really is a right of sexual freedom in private,
as some people have suggested, then Bowers v. Hardwick, which
upheld a statute against sodomy as applied to homosexuals, is
wrongly decided. Privacy to do what, Senator? You know, privacy
to use cocaine in private? Privacy for businessmen to fix prices in a
hotel room? We just do not know what it is.
151
Senator KENNEDY. Well, there are some things that people would
understandthey would feel that government intrusion, in terms of
the married couple in the Griswold case, in terms of their use of
contraceptives, did go across that line; and in the kind of examples
that I have given you, it would seem to me that that would be equally
clear, that a State statute that required compulsory abortion would
certainly violate what I think most Americans would feel would be
the right to privacy. And I believe as well that, once you have the
State dictating the size of families, it would do so as well.
What I am interested in is how you reach that conclusion, if that
would be the conclusion, under your rationale, that if a State has
got a majority and it has got a basis for passing that statute, then
it is not up to Judge Bork to look behind that.
Judge BORK. It is not up to Judge Bork to look behind that
unless he has got law to apply. I was going to say, furthermore,
that I do not thinkI have never found it terribly useful, in testing
constitutional theories, to use examples that we know the Ameri-
can people will never enact. The founders of this nation banked a
good deal upon the good sense of the people, as well as upon the
courts.
Senator KENNEDY. I would just say here, Judge Bork, that one
State did enact such a law with regard to sterilization. One State
did with regards to sterilization and I think that that reaches the
same kind of abhorrence, in terms of what I would imagine most
Americans, and certainly the Court did, would find abhorrent. I do
not think that our Founding Fathers might have imagined that as
well. But I think you have made the point. I would be glad to give
you further time on it.
Judge BORK. Well, if you want to talk about Skinner v. Oklaho-
ma
Senator KENNEDY. I was basically interested, rather than getting
into the cases, just to get at the rationale, the reasoning, the way
that you do move to reach a decision. Let me go to the issues of
equality.
I think most Americans are proud that our Supreme Court, for
its leadership in the past 30 years in securing the promise of equal
justice under law for all Americans, for striking down the Jim
Crow laws, vindicating the right to vote, and prohibiting discrimi-
nation against women.
The Court has helped to bring to an end the reign of prejudice
and, I think, create a better America. You have written a great
deal, over the years, about legislation and court decisions designed
to ensure equal justice under law and I would like to examine some
of these views.
Perhaps the most significant moral test of the country in this
century occurred in the struggle to end race discrimination. I ap-
preciate your support for the school desegregation decision in 1954,
but I am troubled because I believe that your clock on civil rights
seems to have stopped in 1954. You opposed the passage of the Civil
Rights Act of 1964, which prohibited discrimination in public ac-
commodations and employment.
The terrible burden of segregation in that period was described
by Attorney General Robert Kennedy, in his testimony before this
committee in support of the Civil Rights Act of 1963, I just quote
152
very briefly, "Consider also the enumerable difficulties that face a
Negro just travelling from State to State in our country, something
the rest of us have taken for granted. He makes a reservation in
advance. They may not be honored. If he seeks accommodations
along the way, he's likely to be rejected time after time until, just
to obtain lodging and food, he must detour widely from his route,
and if he does find accommodations available to him, they are
likely to be inferior."
That was the reality in America in 1963. That was the evil that
the Civil Rights Act was intended to prohibit, but, Mr. Bork, you
did not just criticize, you harshly criticized, the public accommoda-
tions provisions of the Civil Rights Act of 1964 in your 1963 "New
Republic" article, printed rather interestingly in August of 1963 at
the time of Dr. King's march to Washington, where he stirred the
nation.
In your "New Republic" article, you referred to the principle un-
derlying those provisions as "a principle of unsurpassed ugliness."
And then in your article of March 1, 1964, in the Chicago Tribune,
you also expressed your opposition to the public accommodations
provision and to the title of the proposed Civil Right Act that
would end discrimination in employment as well. Isn't that cor-
rect?
Judge BORK. I do not recall about the employment, Senator. I
wonder if I might have a copy of those two pieces?
Senator KENNEDY. Sure. I will ask the staff to get those. Do you
remember, or you do not remember, the use of words "a principle
of unsurpassed ugliness."
Judge BORK. I remember that. I also remember, Senator, that I
said that racial segregation, by law, was also of unsurpassed ugli-
ness. Well, let me back up and tell you how this article came about
and why
Senator KENNEDY. Let me just frame the question, if those
quotes are correct, about when you first publicly changed your po-
sition on the Civil Rights Act. That would be the question. Given
the two articles which you offered in 1963 and in 1964, when did
you first publicly change your position on the Civil Rights Act?
Judge BORK. I do not know if I did it in the classroom or not. I
know that the first time
Senator KENNEDY. Publicly.
Judge BORK. Well, publicly.
Senator KENNEDY. Publicly, you have written two important dec-
larations. I think we are entitled to know if you were prepared to
make those comments in public. I would be interested in when you
made some public comment or statement. I think our friend from
Pennsylvania indicated you had made many speeches all during
this period of time and I would be interested in when you might be
able to indicate to us that you changed your position on the Civil
Rights Act.
Judge BORK. Well, I think it is implicit in some of the things that
I wrote earlier, but I first said it, I think, where it was written
down at least, in a confirmation hearing in 1973. But, one has to
know the evolution of my thinking about political matters to un-
derstand where that article came from and why I no longer agree
with it and have not agreed with it for a long time.
153
One has also to know that as Solicitor General, I enforced the
rights of racial minorities, in court, often further than the Su-
preme Court was willing to go. You should also know, Senator, that
on my present court, I have frequently voted for black plaintiffs in
various kinds of civil rights or voting rights cases.
Senator KENNEDY. Just on this pointas Solicitor General, you
are really representing your client, are you not? Are you not repre-
senting the United States in those cases?
Judge BORK. I am indeed. Indeed, I did not have to go that far if
I did not want to. I think it is important to know how this came
about. I had come to Yale as an avid free market type. I had gotten
into classical economics, which teaches that by and large, it is
much better to let people arrange their own affairs and their own
transactions than to try to govern them by law. I made, what I now
regard as a not uncommon intellectual mistake of trying to apply
those principles to social interactions. I do not think it works there
because you have not got a marketplace to discipline people.
But, it is not uncommon for free market economists to display
libertarian principles. This article came about because I was argu-
ing with Alex Bickel about this subject. I, at that time, thought
that any coercion of the individual by government, had to be justi-
fied by a principle that did not lead government into all kinds of
coercion that should not be there and I could not see a general
philosophical principle here that justified this coercion.
I also could not see a general philosophical principle that would
justify segregation by law. I was leaning on the side of individual
freedom. I think that was wrong because I do not think any gener-
al principle is available. I now take what I would callat least
what Bickel described asthe Edmund Burke approach, which is,
you look at each measurethis is a political matter, not a judicial
matteryou look at each measure and ask whether it will do more
good than harm.
Had I looked at the civil rights proposals in that way, I would
have, as I later came to, recognize that they do much more good. In
fact, they make everybody much happier and they help bring the
nation together in a way that otherwise would not have occurred.
Senator KENNEDY. Well, the point, I believe, is a simple one. At a
time when men and women in the South and North, Republicans
and Democrats, recognized that race discrimination had to be out-
lawed in America, you strongly and publicly opposed civil rights
legislation, calling its underlying principle one of "unsurpassed ug-
liness." It was not until 10 years later, when you were nominated
to be Solicitor General, that you publicly repudiated those views.
Judge BORK. Senator, I do not usually keep issuing my new opin-
ions every time I change my mind. I just do not. If I re-visit the
subject, I re-visit it, but I do not keep issuing looseleaf services
about my latest state of mind.
Senator KENNEDY. The point that I would make here is that you
felt it was sufficiently important to publish your views at a time
when we were having a national debate in the early part of the
1960's on civil rights legislation. We were having a national debate
in 1968 on the whole issue of fair housing. We were having a na-
tional debate in 1972 on other civil rights legislation and you did
not feel, even though these were matters that were right before the
154
American people and the Congress of the United States, sufficient-
ly aroused in terms of your altered or changed views, that you
were prepared to publish those views. I would just say I wish you
had been as quick to publicize your change of heart as you were to
broadcast your opposition.
Judge BORK. Well, the broadcasting of the opposition took place
entirely because I got into an argument with Alex Bickel. He wrote
frequently for the "New Republic" and he asked me to write it up.
I must say that when he saw it, he said, your article is a version of
liberal thought. Let me say one other thing. The concern about the
rights of liberty, as well as equality, was by no means an unusual
one then. When Congress came to face the fair housing laws, Con-
gress began to make exceptions for Mrs. Murphy's boardinghouse
because they were worried about coercing the individual in that
way.
A few years after I wrote this article, Justice Harlan dissented in
a lunch counter sit-in case, talking about the freedom of the indi-
vidual and the rights of equality as being competing constitutional
considerations. I think I was wrong there. I do not think I was in
bad company, with Justice Harlan and this Congress, but those are
serious matters and it is no small thing to coerce generally.
Now, I was afraid that the principle of this legislation could lead
to coercion of association everywhere. I now realize that we legis-
late partially and never legislate on a general principle so that
there is no danger that this kind of thing would expand into other
areas of coercion.
Senator KENNEDY. Were you not worried about the coercion that
was happening to the blacks in this country because of lack of op-
portunity for equal employment? Were you not equally concerned
about that type of coercion, Judge Bork?
Judge BORK. YOU mean private coercion?
Senator KENNEDY. Yes.
Judge BORK. Sure.
Senator KENNEDY. Public, as well as governmental activities.
Judge BORK. Well, governmental activity, I said in this article,
was wrong. If you segregate by race, I said that was a principle of
unsurpassed ugliness, too, and you will read my writings from be-
ginning to end and you will never find a mark of racial of ethnic
hostility and you will find consistent support for some
Senator KENNEDY. I was talking about the coercion that comes in
public accommodations, at lunch counters, in hotels, in those places
which I illustrated before. I wish, quite frankly, you had demon-
strated as much concern about the coercion that was happening to
those black citizens that were being coerced as you apparently
were concerned about others.
Let me go to the issue of poll taxes. The right to vote is the cor-
nerstone of a free society. For decades poll taxes were used to keep
poor Americans, often of racial minorities, from exercising the
franchise. In Harper v. Virginia Board of Elections, which was de-
cided in 1966, the Supreme Court struck down the poll tax because
it deprived poor Americans of equal protection of the laws by bar-
ring them from exercising their fundamental right to vote.
In its majority opinion the court stated: "Wealth or fee paying
has, in our view, no relation to voting qualifications. The right to
155
vote is too precious, too fundamental to be so burdened or condi-
tioned."
Judge Bork, is it not true that in your confirmation hearings to
be Solicitor General in 1973 you testified that you thought that
Harper, and I quote, "as an equal protection case seemed to be
wrongly decided."
You were asked whether as far as the welfare of the nation was
concerned the Harper case was correctly decided. Am I correct that
you answered, "I do not really know about that. As I recall it was a
very small poll tax. It was not discriminatory and I doubt it had
much impact on the welfare of the nation one way or the other."
And then you were asked about the constitutional issue, and you
responded, "I think that is a question of degree. It depends on the
size of the poll tax."
Do you remember? Is that accurate?
Judge BORK. AS I recall it, Senator, yes.
Senator KENNEDY. NOW, am I correct that in 1985, in your for-
ward to The Constitution and Contemporary Theory, you again
suggested the Supreme Court had been wrong to strike down the
poll tax in the Harper case?
Judge BORK. Sir, I am willing to discuss that case, fully, Senator.
Senator KENNEDY. I am just wondering if you have changed your
view that the Supreme Court was wrong in the Harper case to hold
that poll taxes are unconstitutional?
Judge BORK. I think it was, and I will tell you why, and I have
no desire to bring poll taxes back into existence. I do not like them
myself. But if that had been a poll tax applied in a discriminatory
fashion, it would have clearly been unconstitutional. It was not. I
mean, there was no showing in the case. It was just a $1.50 poll
tax.
This Congress had just recently drafted and proposed to the
States and had adopted an anti-poll tax amendment to the Consti-
tution which this Congress carefully limited to federal elections so
as to leave State poll taxes in place if States chose to have them.
That seemed to me a little odd, therefore, that the Court would
come along and mop up something that Congress did not bother to
amend the Constitution to accomplish. Not did not bother; deliber-
ately did not.
The poll tax was familiar in American history and nobody ever
thought it was unconstitutional unless it was racially discriminato-
ry. Now, in Harper itself Justice Blackwho was hardly a man
who was insensitive to voting rightsJustice Harlan and Justice
Stewart all dissented from the majority holding. Justice Black said
the Court was using the old natural law due process formula to
write into the Constitution notions of what it thinks is good govern-
ment policy.
Harper overruled a prior case in which the majority had upheld
the poll tax and in that case Justices Black, Frankfurter, Jackson
and others upheld the poll tax. Archibald Cox has said, and I
quote, "the opinion seems almost perversely to repudiate every con-
ventional guide to legal judgment," although he liked the result. I
like the result too. I just do not see the legal judgment there.
Alexander Bickel made much the same criticism. It is a decision
that is hard to square with out constitutional history.
156
Senator KENNEDY. Well, it was not only on the basis of race. It
was also on the question of discrimination against the poor. I
remember very well, because I offered that amendment on the
Voting Rights Act. I suppose the question is, how high a price should
a poor person have to be able to pay to exercise the fundamental
right to vote. You and I may not have to worry about where each
dollar goes but there are a lot of Americans who do. To suggest that a
poll tax, if it is small enough, does not deprive a poor person of a
fundamental aspect of citizenship, well that reminds me of Anatole
France's famous remark that "the law in its majestic equality for-
bids the rich as well as the poor to sleep under bridges and to beg
in the streets and to steal bread."
The oath every judge and justice takes requires them to do equal
right to the poor as well as to the rich. I just think we have to be
sensitive to the realities, not just legal technicalities.
Let me go to one man, one vote. In years past, one of the great
obstacles to real democratic representation in the country occurred
when State legislatures apportioned themselves in ways that sys-
tematically reduced the voting strength of particular constituen-
cies, drawing election districts with different size populations to
enable some groups to maintain more of their share of power at
the expense of others.
Judge Bork, in the Reynolds v. Sirns case back in 1964, the Su-
preme Court held that the Constitution requires election districts
in States and localities to be apportioned in a way that meets the
one man, one vote standard so that each legislative district con-
tains roughly equal population.
Is it not true that in 1968 you wrote in Fortune Magazine, and I
quote: "On no reputable theory of constitutional adjudication was
there an excuse for the doctrine it imposed."
Judge BORK. I think, Senator, I not only wrote that, I still think I
was right, and I will discuss it with you.
For one, we might start off by observing that the Senate of the
United States would be an unconstitutional body if that rationale
of one man, one vote were applied here.
Senator KENNEDY. Well, that is entirely different, as you are too
good a professor not to understand. There was a different require-
ment agreed to at the time the Constitution was adopted, and that
was the New Jersey Plan and that was accepted by the Founding
Fathers, and that is a different kind of situation and you know
that as well.
Judge BORK. That is entirely true. On the other hand, the reason
for allowing certain units to have equal votes, even though their
populations are not equal, applies as well in a State legislature or
State senate as it does here. But passing that, it should be said that
I agreed with Baker v. Carr, which was the case which first held
over the dissent of Justices Frankfurter and Harlanwhich first
held that the courts could get into reapportionment. It was a sub-
ject matter they could take up. I agreed with that because the leg-
islature in that case was so mal-apportioned that a majority of the
voters had no opportunity to get a new apportionment plan.
Now, it should be said that my position was the position that
Justice Stewart took in Lucas v. Ji.Jf.th General Assembly in dissent.
There you had a reapportionment plan with a State senate based
157
on counties, I believe, which had been adopted by a referendum
with a majority vote in every county in the State.
Justice Stewart wrote, and I explicitly agree with it, that a State
should be free to apportion as it sees fit, so long as the apportion-
ment plan has rationality and so long as a majority has a way to
change the apportionment whenever it wants to. That seems to be
my point, and I must say it is a point that has been agreed to by a
great number of law professors.
There is nothing in our constitutional history that suggests one
man, one vote is the only proper way of apportioning. There is
nothing in our political theory. Indeed, the executive veto, the com-
mittee system, districting, all of those things are really inconsistent
with one man, one vote.
Senator KENNEDY. Well, I must say that you have indicated that
position that you have expressed here on many different occasions.
You said in 1973 before the Congress one man, one vote "was too
much of a straightjacket" and that you, quote, "did not think that
there is a theoretical basis for it." And then you indicated on June
10th of this year, you said in an interview, "well, I think this Court
stepped beyond its allowable boundaries when it imposed one man,
one vote under the equal protection clause."
I think the people of this country, Judge Bork, accept the funda-
mental principle of one man, one vote even though they are not
burdened with a law school education.
Judge BORK. Well, Senator, if the people of this country accept
one man, one vote, that is fine. They can enact it any time they
want to. I have no desire to go running around trying to overturn
that decision. But as an original matter, it does not come out of
anything in the Constitution and if the people of the country want
it, they can adopt that apportionment any time they want to.
Senator KENNEDY. Judge Bork, I do not think you have to be a
law professor to know a little about simple justice. After hearing
you just on these issueswe will get into others during the course
of our hearingthe bottom line is clear: When it counted you op-
posed the key provisions of the Civil Rights Act banning race dis-
crimination in employment, in public accommodation, and you did
not publicly repudiate your opposition for some 10 years.
You criticized the Supreme Court's decision banning the enforce-
ment of racially restricted covenants. In a response to earlier ques-
tions you said you could not find a rationale about how you would
be able to continue banning those
Judge BORK. Senator, may I correct that? I said that decision
stands. Nobody is going to overturn it, but it is fortunate the ra-
tionale upon which it was decided was not extended to other things
because it would have made the courts the ultimate legislature on
all private relationships in our society. I think a vast majority of
professors who have examined that have agreed.
Senator KENNEDY. I did not hear this afternoon the rationale
about how those racially restricted covenants could be struck down.
Judge BORK. I argued against racially restricted contracts in
Runyon v. McCrary under Section 1981 and won the case. They can
be struck down that way. Congress has struck them down, as I un-
derstand it, in the Fair Housing Law as well, which is fine, is good.
158
Senator KENNEDY. But you disagreed with the Supreme Court de-
cision striking down the poll tax which prevented poor people from
exercising their fundamental right to vote; and you also opposed
the Supreme Court decision upholding the one man, one vote prin-
ciple which requires that every citizen's vote be counted equally.
With all your ability, I just wish you had devoted even a little of
your talent to advancing equal rights rather than criticizing so
many of the decisions protecting rights and liberties.
Lawyers can always make technical points, but a justice ought to
be fair.
Judge BORK. Senator Kennedy, I do not think your characteriza-
tion of one man, one vote as a civil liberties case is correct. In fact,
I think it is the opposite. But we can discuss that at greater length.
The CHAIRMAN. If you would like to go on, because the Senator
has more time, also.
Judge BORK. He has more time? I thought he was summing up.
The CHAIRMAN. I think he was. I am not suggesting he should go
on, which he can, because his time is not up.
My point is, anytime you feel you want to expand on an answer,
you are not bound by the time, so you just go on any time you wish
to expand on an answer. That is my point.
Senator LEAHY. Mr. Chairman, I might note just on that last one,
just as Judge Bork left it, I, for one would find it very helpful to
hear an expansion on his last sentence.
Judge BORK. On one man, one vote, Senator?
The CHAIRMAN. Whatever you were going to say. The whole
point is, Judge, any time you want to say anything, just go ahead.
Senator LEAHY. I wish you would. I understood you to say you
did not see it as a civil liberties case but quite the opposite and I
would just be interested to hear the explanation.
Judge BORK. Well, for this reason Senator, let us talk about a
State like Colorado, all of whosenot all ofthe majority of whose
citizens in every county want a State senate structured like the
federal Senate. Why is it an advancement of civil liberties to say
they cannot have it. I think it cuts into the liberties of the voters
who want to have a senate structured in that way. But more funda-
mentally, you cannot apply the principle of one man, one vote
across the board unless you think that we could do away with the
committee systems, we could do away with the executive veto, we
could do away with districting instead of at-large elections, and so
forth and so on.
These points are all made with great precision in advance of the
Court adopting the point in Dean Phil C. Neils article in the Su-
preme Court Review that came out just about a year before the
Reynolds case, I guess, and was made at great length. Nobody
doubts that an apportionment which is discriminatory can be
struck down. Nobody doubts that an apportionment which a major-
ity cannot change should be struck down. The only question is
whether this rigid formula is good or not.
And let me tell you one other thing, Senator. For my sins I was
approached by a three-judge district court in Connecticut and said
they had just struck down the plan put in by the legislature and
would I serve as a special master to redistrict Connecticut. I said,
Judge Blumenfeld, I have just written that one man, one vote is a
159
fiascoand that was my word, I am afraidbut I will do it. I will
follow the rules if you want me to do it that way, despite the fact
that I have written that, and he said, yes.
So I then went out and got all of the census tracks and began to
try to remake Connecticut. Well, I was not too well received up in
Hartford because when I went into the legislatures they were terri-
fied it was a Yale professor with a beard that they had never heard
of before. I remember they looked at a map on the wall and said
somewhat caustically, that is Connecticut, professor. And I said, for
now. [Laughter.]
But I did it. I did it on a one man, one vote basis and within 1
percent deviation from district to district, which means you have
got to cut town lines and carve communities up in the strangest
ways. And I did it blind, just on the numbers without any under-
standing of the political impact and I first understood the political
impact when I went up to testify at the hearing. I went to a restau-
rant without being told it was the Democratic parties hangout. I
was sitting there eating when a man I did not know came up and
said, that is a wonderful plan, professor; you are a good man; my
name is John Bailey, Democratic national committeeman. He was
chairman of the Democratic national committee.
Well, the court accepted my plan and the Republicans appealed.
But I know from that experience just how artificial one man, one
vote leads you to be in cutting up communities and natural groups
and so forth. A little more leeway in the apportionment rules,
whichas a matter of fact in that case the Court came to allow
more leeway so that it is not one man, one vote in state elections
anymore. And I think that was a good relaxation.
Senator KENNEDY. Mr. Chairman, I do not know how much time
I have.
The CHAIRMAN. Senator, you had 5 minutes remaining.
Senator KENNEDY. Just one final area. On the issue of sex dis-
crimination, Judge Bork, as you know, the equal protection clause
of the 14th amendment prohibits a state from denying any person
within its jurisdiction the equal protection of the laws. You said
this afternoon that your statement that the equal protection clause
does not apply to women came in your Indiana Law Journal arti-
cle.
Judge BORK. DO you have a page citation there, Senator?
Senator KENNEDY. Excuse me?
Judge BORK. DO you have a page citation?
Senator KENNEDY. Which? Of the Indiana Law Journal?
Judge BORK. Yes.
Senator KENNEDY. Page 17. I am glad to move along just in
terms of the concept. I am not going to stop here. I want to get to
the broader question in terms of the test, so I will go beyond theI
am not looking for the quote here, just to mention that as the Indi-
ana Journal.
Judge BORK. I was just trying to find that statement.
Senator KENNEDY. YOU had said that cases of racial discrimina-
tion aside, it is always a mistake for the Court to try and construct
substantive individual rights under the due process clauseor the
equal protection clause.
If I could just go on, there is something else I am driving at.
160
Is it not true that in an interview with United States Informa-
tion Agency in June of this year, 10 years after the Court applied a
rigorous standard test to sex discrimination, you said, and I quote, "I
do think the equal protection clause probably should have been kept
to things like race and ethnicity."
This is after the Supreme Court changed its basic test. It is clear
from your public comments as recently as 3 months ago that you
disapprove of the Supreme Court's recognition in the past 10 years
that laws which discriminate on the basis of sex must be subject to
heightened scrutiny under the 14th amendment. Because under the
rational basis test, the Supreme Court upholds a classification if it
is rationally related to any government interest. That is a very le-
nient standard used by the courts in judging routine economic reg-
ulations that treat different persons and businesses differently.
That distinction was mentioned by the Chairman. In 1976, the
Supreme Court rejected the rational basis test and applied a strict-
er standard for sex discrimination. And yet, in June of this year,
you said that decision trivialized the Constitution. In this day and
age men and women stand equal before the law. Women are first-
class citizens, Mr. Bork, and your views would take us back to the
days when women were second-class citizens and the Supreme
Court winked at discrimination and denied equal rights for women.
Judge BORK. Well, let me talk about that, Senator. In looking at
the 14th amendment, race is the paradigm case. Race is the core of
the amendment. That is what the post-Civil War amendments were
basically aimed at. They wanted to help and prevent discrimina-
tion against the newly freed slaves. And of course, race and ethnic-
itythat is the way the amendment was applied for a long time. It
was applied to Chinese Americans in Yick Wo v. Hopkins.
At least for the last 90 years, roughly, the Court has also been
doing two things. It has been using a reasonable basis test, but it
has also engaged in the activity you described, by saying this group
is in under the 14th amendment, that group is out.
Then they would develop multi-tier levels of scrutiny. That is,
racial discrimination or distinction required strict scrutiny by the
courts and a compelling governmental interest. Gender began to
get intermediate scrutiny or something of that sort. I think that
approach is highly artificial and not sufficient. I think you do not
have to say this group is in, that group is out. You say that all per-
sons are in, as the amendment does, and then you apply a reasona-
ble basis test.
The reasonable basis test got a bad name because it simply is not
applied with any degree of severity at all in the case of economic
cases, and maybe it should not be. Maybe those are interest group
politics cases. But if you look atask yourself whether a reasona-
ble basis for distinction exists, the answer will be in a race case,
almost never; in a gender case you will get something that resem-
bles intermediate scrutiny, but you do not have to go through put-
ting groups in and out and you do not have to have different tiers
of scrutiny.
And indeed, I think Justice Stevens made a similar point, or
maybe the same point, in a recent opinion of his. It gives women
women were not thought of as protected in particular when the
14th amendment was applied. There was a lot of what we now call
161
discrimination against women which seemed to them a very natu-
ral way for civilization to be organized. But as the culture changes
and as the position of women in society changes, those distinctions
which seemed reasonable now seem outmoded stereotypes and they
seem unreasonable and they get struck down.
That is the way a reasonable basis test should be applied.
Senator KENNEDY. Well, the point as I see it, Judge Bork, is that
talking about the rational basis test, it was the test the Supreme
Court used for a 100 years to deny equality for women. Some years
ago the Court altered that to a rigorous standard for sex discrimi-
nation. As I understand the rational basis test, it is the same test
which is used in terms of economic regulations and pollution ordi-
nances. You have restated earlier in your response to Chairman
Biden that this is still your test whereas the Court itself has moved
to a much more rigorous standard to sex discrimination.
Judge BORK. I do not think in the case of gender, Senator, that
my testor what you call my test, which is a test the Court has
been applying in one way or another for 90 yearswould come out
that much different than an intermediate scrutiny standard.
Senator KENNEDY. Well, it was still the test that was used when
women were discriminated against back in 1896. That was the
basis and I think you get a very substantial body of legal opinion,
plus the Justices, that believe that the test has been altered and
changed to a rigorous standard test and that does provide a great
deal more protection to women.
What I hear you saying here now is that the test that was used
about 90 years ago and which was the basis for discrimination
against women is the standard that you would use. You might be
able to elaborate on it, but that is, at least, what I am hearing.
Judge BORK. I do not know that it was the basis for discrimina-
tion against women. I think that society saw all kinds of distinc-
tions, legal distinctions between men and women as entirely rea-
sonable and rational. This society no longer sees them that way,
and that is fine.
Senator KENNEDY. Well, I just will take 30 more seconds, Mr.
Chairman. On numerous occasions over the last 16 years, Mr. Bork,
you have suggested the equal protection clause of the Constitution
does not ban discrimination against women. Now you are suggest-
ing the Supreme Court should apply the same lax standard to sex
discrimination cases that it applies to challenges to air pollution
ordinances or economic regulations.
You have also disapproved the equal rights amendment, and fi-
nally you also suggested in a 1985 opinion that the Civil Rights Act
offers little if any protection against any one of the ugliest forms of
gender discrimination, individual sexual harassment on the job. We
have made great progress in the country in the last 20 years in
giving women equal status under law and I think the controversy
has largely been settled. But you would have the Supreme Court,
evidently, roll back the clock and reopen old wounds.
Judge BORK. Senator, I think I must reply to that. I have never
said anything about the ERA except that it seemed to me odd to
put all of the decisions about how women may be treatedwhat
they may do and what they may not do and so forthinto the
hands of judges without any guidelines from a legislative history or
162
anything else. Had the ERA said, Congress may make such laws as
it sees fit to remove gender inequality, I would have no objection.
My objection to ERAwhich I never campaigned against, I just
dropped a footnote someplacewas essentially the same as my ob-
jection which I have voiced to this administration's balanced
budget amendment. In one case you put all the relationships be-
tween the sexes in the hands of judges where it should be in the
hands of legislatures, except when it violates the Constitution. In
the other case, you are going to put this government's finances in
the hands of judges, or the budget in the hands of judges.
It does not seem to me that judges are fit for either of those
tasks without a lot more guidance than either amendment gives
them.
Senator KENNEDY. The point is, in a May 1974 Mayflower Hotel
speech, you indicated that the fact that the adoption of ERA would
ratify and forward a dangerous constitutional revolution is the one
feature of it that is rarely if ever criticized.
Senator KENNEDY. I would ask that the full speech be put in the
record.
[Speech follows:]
163
MAYFLOWER HOTEL SPEECH
The title given this talk "The Consequences of Judicial
Imperialism" may suggest that part of what ought to be the argument
is tucked neatly into the premise, that is the proposition that the
judiciary have exceeded the bounds of their legitimate authority.
Though the title was assigned, it is only fair to say I did not
protest.
It seems to me that in many areas, not merely that of the role
of the judiciary, we are more in need of constitutional thinking than
at any time since the framing of the Constitution and the period
before, daring, and after ths Civil V.'ar. Our society is changing
drastically, and the changes to be observed in the judiciary are
merely one of the alterations that require thinking about.
U'alter Bagehot sunned it up best whan he said,
The ch<">r ictensuc ^.c-.ter o: p.rea; nations, ii'-;s the

Romans ana t,ie Er.jlisn, which have a lor.e history of
continuous creation, is that they pay at last fail
from not comprehending the ereat institutions which they
have created.
One of the greatest of the. creations of the American nation is
a federal judiciary enpowered to set aside the acts of democratic
majorities in the name of the enduring values named in tne Constitution.
I' is unique, it has undoubtedly contributed greatly to our freedom
and to our sense of nationhood, our sense that America is founded upon
the idea of an untouchable core of human freedom. But judicial po'/er
is not invariably beneficent. I invite you to comnare two reflections
by one of America's greatest legal scholars before and after judicial
activism had reached its present proportions.

164
- 2 -
In 1962 Alexander M. Bickel was able to write a book about the
federal judiciary entitled, The Least Dangerous Branch, in which he
quoted Hamilton's words that "the judiciary, from the nature of its
functions, will always be the least dangerous to the political rights
of the Constitution" because it has 'no influence over either the sword
or the purse; no direction either of the strength or of the wealth of
the society; and can take no active resolution whatever."
Not long before his tragically early death in 1974, Bickel wrote
in another vein. In discussing civil disobedience in America, an
attitude toward law and rules that had its culmination in Watergate,
he said:
The assault upon the legal order by moral imperatives

wasn't only or perhaps even raost effectively an assault
from the outside. It came as veil from within, in the
Suprene Court headed for fifteen vears by Farl '.'arren.
. . . More than once, nr>d in so"\e of ics rrost irroortant:
actions, the '.'arren Court zot over doctrinal difficulties
or issues of the allocation of competences araong various
institutions by asking what it viewed as a decisive
practical ouestion: If the Court did not take a certain
action which was right and good, would other institutions
do so, given political realities?
That judiciary had, for Alex Bickel, become a dangerous branch
because it increasingly violated a fundamental value of our society.
It is the premise of our legal order," he wrote, "that its own complicated
arrangements, although subject to evolutionary change, are nore important
than any momentary objective."
It is that lesson, that comprehension of this great institution,
that we are in danger of losing, and with it much else central to our
civilization.
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In the time available, I can but briefly outline the dangerous
consequences of the era of judicial activism that began with the
Warren Court and has not ended yet.
If pressed to prove that courts have become activist I uould
respond in two vays. First, they have expanded the scope of their
authority dramatically in the past twenty years. Activism has appeared
before in our history, but it must be admitted that courts legislate
more freely and more frequently now, and they have displayed an un-
precedented willingness to take over major executive functions. If
it has not become routine, it has certainly become common for courts
to enter into the detailed administration of prisons, mental hones,
police and fire departments, and to review administrative agency
decisions with a severitv arc particular itv th.it reniaces aeercy
ciscrezicn with judicial discretion.
An alternative measure of -judicial activisn is the degree to
which courts have freed themselves from ar.y meaning to be found in
the Constitution by conventional modes of legal interpretation, the
degree to which meaning is assigned the Constitution, which is not to
be found in its text, history, and structure and is often contradicted by
text, history, or structure. Hardly anyone denies that is an accurate
description of what occurs.
Instead the scholarly debate swirls, or perhaps stagnates, around
the issue of whether judicial rewriting of the Constitution is justified.
In fact, the debate is less about that than the question of which
justification for rewriting the Constitution is better. One popular
argument is that courts must cure the failures of democracy by protecting

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groups identified as "discrete and insular minorities," a notion suggested
by footnote four of the Carolene Products decision. I am thinking of
putting errata sheets in every copy of volume 304 of the United States
Reports stating that footnote four was a typographical error, thus
wiping out an entire jurisprudential industry and bringing two dozen
academic careers to an abrupt conclusion.
The difficulty with the argument that courts should undertake to
reoair the defects of democratic processes is that the demonstration
of a defect usually consists in pointing to a law that the scholar
in question would have vetoed had he been the governor. The process
is not really shown to be defective; the result is simply disliked.
The other approach is that of moral philosophy. The law schools
are avash with social contractarians, utilitarians, linguistic analysts,
ard lurisnrudes of every persuasion. It has eotten so you can't svint;
a cat in the faculty lounge without damaging some stern young philosopher
though there nay be roon for argument about the social utility of that-
Among the nore thoughtful atter.pts to justifv a judiciary that departs
from the fair meaning of the Constitution is thattHarry Wellington, the
dean of the Yale Law School, a nan whorr. I have no desire to hit with a
cat for rcany reasons, some of them not connected with self-interest. He
contends that constitutional courts may legitimately enforce against
legislatures the conventional morality of our society. The conventional
morality is not the judges' morality but ours, the society's. Courts,
he believes, are the proper agency for the imposition of principles
derived from morality because, being isolated from interest group politics,
they are institutionally better equipped than legislatures, to discern

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conventional morality. He states, "the way in which one learns
about the conventional morality of a society is to live in it, become
sensitive to it, experience widely, read extensively, and ruminate,
reflect, and analyze situations that seem to call moral obligations
into play. This task may be called the method of philosophy."
Among the many reasons for dubiety about this approach is that
there does not appear to be a single morality. The morality of complex
societies tends not to be monolithic and to be filled with inconsistencies.
The method of philosophy, which Wellington prescribes, and which is the
nethod advocated by most friends of an activist judiciary, is a prescrip-

.vT.'.~' - > ,
tion for discerning not the morality of the society at large, but, tTTe
morality of the upper middle class ana, probably, because of the materials
A
from which it will be drawn, primarily the morality of the intellectual-
acadeir.ic segment of that class. The norality of other sesnents of the
c o U M I C V is likelv tr> be largely unpublished, inarticulare, and ohrased
in ways intellectuals dislilre. In any event, the notion that the
generality of judges have the tine or inclination for rumination and
philosophical analysis is at odds with reality. If that is what we
want, and I don't, we will have to choose our judges in different ways
and drastically reduce their workloads.
These considerations are sufficient, I think, to show that there is
no philosophical rudder for judges and that once they depart from the
conventional legal modes of constitutional interpretation they are not
merely at sea but adrift. That is the fate of activist courts who
abandon the confining safeguards of law in order to achieve laudable
momentary objectives.
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The consequences of judicial activism seem to me damaging in three
areas: the effects upon law, upon society, and upon our political
arrangements.
The implications for law are fairly obvious. It will display, in
greater or less degree, the following characteristics: law will be
political, it will display strong signs ofTincoh'erence, it will manage
affairs increasingly incompetently, and much of it will become
trivialized.
The matters with which constitutional law deals are of intense
policical interest. They are made subject to law and courts precisely to
remove them from politics. But that requires other rules to bind the
judge. Courts who have moved away from conventional legal materials
have P.O such rules and csn only decide politically. It is, moreover, ?.n
un= it isfactor- for- of politics, one hidden fron nublic viev, because the
inhibitions of the traditional judicial process renain in place so that
interest groups have little or no access to the process and no power
to censure those responsible for the outcome. As legislatures, in other
words, courts are inaccessible and unresponsive.
The body of law produced by a political court will be intellectually
incoherent because individual iudpes will have different hierarchies of
political values. I remember a poignant evening when a young, highly
philosophical professor from another school came to Yale to talk about
his study of the Suprer.e Court. Ke had indentified a long list of values
that seemed important in the Court's opinions equality, freedom,
education, leisure, and so on. He had worked his way through the cases
to find the philosophical stance of the Court, and he diagrammed the
results for us on the blackboard. Unfortunately, what the diagram showed

169
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was Chat value A was preferred to B, B to C, C to 0, but D was ranked
higher than A. He said he could not believe it and was going back to the
drawing board to see what he had missed. What he had missed is that
political groups do not produce consistent votes.
Incoherent law is virtually a denial of the idea of law. It
works upon litigants, fails to give fair warning, and educates us to see
law as essentially manipulative and cynical. At Yale, for reasons we
cannot reseaber, we teach constitutional law in the first semester of
the first year, and, try as one will to counteract its baleful influence,
the concents of che casebook overwhelm the teacher. It is said that
some years ago a politically-oriented version of legal realists flourished
at Yale and the faculty taught it to the courts. If that is so, the
courts are having rheir revenge, because now che casebook teaches iu Co
:ro Yale sMJencr..
Political courts will also overload thenselves because they push
law into areas it had noc previously reached. Congress has a great
deal of responsibility for overloaded court systems, but I wonder if even
that is not partly due to the fact that courts have displayed a willing-
ness to Cake on policy issues in a legislacive panner. In any event,
overload diminishes the competence of courts because they deal more rapidly
with more problems, more institutions, and more subjects.
Activism also tends to trivialize the Constitution. Once legal in-
terpretation is abandoned in order to produce good results, it is almost
impossible to find a stopping point. For example, once the Court expanded
the equal protection clause beyond the subject of race, standards for
demanding or not demanding equality blurred, and we have arrived at the
situation where the Court solemnly addresses itself to the question of
w h a t the C o n s t i t u t i o n of the Unir<H ;t--f-oo " - -- ---

170
setting the age for drinking 3.2 beer for males at 21 and females at
18. It turned out that the Constitution forbade such treatment of that
discrete and insular minority, males, and the dispute generated seven
different opinions, suggesting that the issue was of roughly the same
portent for the Republic as the Steel Seizure Case. I cannot bring
myself to comment upon the recent discovery that the framers of the
fourteenth amendment required female reporters in the Yankees' locker
room.
I want to turn next to some of the effects of judicial activism upon
the society. Two cone to r.ind: the infliction of inefficiency upon
social and economic processes, and damage to the community's morale
and self-confidence in its moral standards.
The infliction of inefficiency upon economic processes has occurred
pri-anlv trrouph the er.pansive reading of ar.ti-trust ar.d regulatory
statutes. That is a subject so familiar that I pause only to raer.tion
it. The inposition of added costs on other institutions and processes
occurs through the judiciary's tendency-to regard judicial processes as
the c-odel to which other processes should tend, so that in a variety of
contexts the Court requires some fora of due orocess, some kind of a
hearing, before action can be taken. This is often quite inappropriate
to the processes involved, whether school discipline or the repossession
of a television set for .nonpayment of installments. Su powerful is the
influence of that lesson that private institutions such as universities
begin to judicialize their processes for discipline and other matters,
and the adversary process often polarizes the members of the community
in ways that older, more informal processes did not. Increased costs also
occur when the courts undertake to prescribe in detail the behavior of

171
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Institutions such as mental hospitals. In Che name of the Constitution,
a particular standard of care and theory of therapy is chosen and imposed
upon institutions that have some claim to know better how to operate.
More worrisome in many respects is the impact of an activist judiciary
upon social morale and self-confidence. Constitutional law as enunciated
by the Supreme Court is an enormously powerful moral teacher. Too often
its teachings are a rebuke to the traditional moral standards of the
community. Local communities are told that their schools may not Inflict
even light punishment for disciplinary infractions without following
procedures prescribed by courts and must then fact possible judicial
review of their decisions. The authority of adults, teachers, and ^
institutions other than courts is made suspect and weakened. Local
communities are frequently informed that even slight episodes of racial
seeretation, often well in the nast, aro so heinous r\.-.t entire scVool
svstens nust oe reorganized ar.d run by courts. Studer.es ".use be bused
from their neighborhoods in order to achieve specified degrees of racial
integration, the lesson being that free social processes and individual
choices that did not achieve that integration are blameworthy. This is
naturally viewed as rebuke and ounishment.
Communities are further infor-.ed that their attenpts to control
pornography and obscenity, to orevent the deterioration of the moral
atmosphere in which they live, are in fact benighted violations of First
Amendment freedoms. They are often told in fact that the Constitution
enshrines moral relativism. When the Court denied state power to ounish
the public display of an obscenity, the opinion said, with stunning
casualness, that "one ntin's vulgarity is another's lyric." That doctrine
would deny society the right to enforce any moral standards against
dissenters. We have tho judiciary to thank for the current condition

172
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of Times Square and the plague of pornography around us.
The subject of the public's frustration with a judicial system that
seems unwilling to punish criminals with the severity that the public's
moral sense demands is too well known to require extended comment. It
is epitomized in the judiciary's whittling away at the death penalty,
a punishment explicitly contemplated by the Constitution and obviously
desired by a majority of the electorate.
Such judicial behavior cannot but frustrate society, make it doubt-
ful of its own healthiest moral standards, and weaken its morale.
That is one of the more serious consequences of judicial imperialism.
I cone at the end to consideration of the impact of judicial
activisn upon our politics. The first and most obvious is that activism
requires a degree of disingcnuousness. The Court's authority derives
largely from the public belief that it really is the Constitution and
not f o policies of 2 rv.iontv of n n o Irwers that reauires denocratic
choices to bo overturned. The Court, justifiably concerned about the
possibly tenuous base of its power, is careful to insist that its r.ost
political decisions are in fact coriDelled by the Constitution. The
opinion in Harper v. Virginia Board of Elections is typical of many.
The Court struck down a poll tax, though it was entirely clear that
the framers of.the fourteenth amendment had no such result in mind.
That difficulty was addressed with this rhetoric: "the Equal Protection
Clause is not shackled to the political theory of a particular era...
(W)e have never been confined to historic notions of equality." Which
is to say that a majority of the Court has substituted a new notion of
equality for that of the framers. But then the opinion states, "Our
conclusion...is founded not tfn what we think governmental policy should
be, but on what the Equal Protection Clause requires." The second
assertion cannot be true if the first is.

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There are worrisome signs, however, that we are coming to political
governance by the judiciary. Perhaps, under its tutelage, we have
come to believe that democratic processes are suspect, essentially
unprincipled and untrustworthy, and that judicial governance is to be
preferred. Perhaps prolonged judicial activism is not entirely responsible
for that; there are other possible sources of weariness with democracy
and self-government. It is also possible that the rise of pervasive,
intrusive, and unresponsive bureaucracies has made politics seem rela-
tively ineffectual. The desire for judicial government is dramatically
illustrated by the proposed Equal Rights Anendnent. It would confira
the courts in their worst tendencies by handling them, without legis-
lative guidance of any sort, the task of naking the infinite number of
political decisions required in deciding when men and women must be
treated alike, wher. they need not be, ard, perhaps, when t'nev ~.iy not be.
Th2 idc~ i ..'t trie courts ';ave alrer.cv Gtarted uiwn that path on their
own is no reason to legitimize it. But the farct that adoption of ERA
would ratify and forvard a dangerous constitutional revolution is the
one feature of it that is rarely, if ever, critized.
Finally, it should be noted that an activist judiciary, in our
tire, vill increase the already ciisoronortionate influence of intellectuals
upon our politics. Judges have no electorate to face. What they have
to face is opinion shaped by the intellectual class, primarily academics
and journalists. Judges themselves are members of that class, they
tend to respond to its values, and a steady stream of clerks fresh rron
the law schools reinforce that tendency. Moreover, a judge's current
reputation as well as his place in history is likely to be determined
by journalists and academics. -Over time, a judge who was hot influenced
by the dominant intellectual and moral cliraate in which he lives would
have to be a very hardy or insensitive charar-^~- -"--
86-974 0 - 8 9 - 8
174
- 12 -
For complicated reasons, which it is no part of my assignment to
trace here, the intellectual class tends to be left of center on the
American political spectrum, and more egalitarian and morally relativistic
as well. It displays the characteristics we see in the movement of con-
stitutional law. This puts a somewhat more somber light than perhaps
he intended upon Anthony Lewis' observation that "If American judges
are the most powerful on earth, so too American law schools and legal
writers are the most influential."
The point I am making is not refuted but reinforced by the reputa-
tion of the current Supreme Court as very conservative. It is actually
a mildly liberal Court. Though such natters are impressionistic to some
degree, most people I have talked to, including those of a liberal
persuasion, tend to agree that on issues where the Court has a free
vote, where there is no constitutional conpulsion, the Court rather
regularly produces result;-. nore liber.il z'nr.n those you voulci j>ct after
full deoate -n a national refcrendun. The Court is viewed as con-
servative only because of an error of parallax: we see it through
thelltmm'\H'uitiauiitHf the legal acadenies and the media, and hence fro:?.
their perspective.
No one can doubt the Court's great educative power, and the fact
that it tends to respond to intellectual class values ireans that its
influence is rather steadily pressing our views and our politics to
the liberal side of the spectrum. That is one reason that liberals
and intellectuals of this generation applaud and encourage judicial
imperialism just as businessmen and conservatives of other generations
once did.
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At the end a pair o caveats are in order. I do not for a moment
suggest that/the trends I have been describing are solely or even pri-
marily caused by judicial activism. I do suggest that activism con-
tributes to them. Nor do I yield to anyone in admiration of the role
the federal courts have played and do play in our polity. Without
their constitutional function we should be a very much less happy
nation than we are. But to say that is not to say that some tendencies
are not deeply disturbing. Activism is not the same as judicial
enforcement of constitutional guarantees. The consequences of activisn
by the judiciary are such that they deserve nromir.ence in public dis-
cussion. We have created a great institution in the federal judiciary,
and vre ought not to fail it and ourselves by not comprehending the
institution's strengths and the limitations.

176
Judge BORK. The dangerous constitutional revolution was hand-
ing an entire important area of our life, of our culture, and our re-
lationship between the sexes to nine justices. I think the Congress
and the State legislatures should initially make those adjustments
about whether women should go into combat, about whether we
should have unisex toilets and all of this business you are going to
leave to judges.
That was my only objection to the unstructured grant of power
to the judiciary.
The CHAIRMAN. Senator, your time is up.
Senator Hatch, and this will beJudge, it is a long day for you
this will be our last questioner for today and we will reconvene to-
morrow at 10 o'clock.
Senator HATCH. Judge, sorry to keep you a little bit longer but I
think it is important to cover some of these areas that you have
been discussing with Senator Kennedy and others.
I might say, Mr. Chairman, in response to a question from Sena-
tor Thurmond, Judge Bork referred to recommendations he made
in connection with the pocket veto case brought by our colleague
Senator Kennedy.
In this memorandum, Judge Bork, who was the then Solicitor
General, advised the Attorney General and President Nixon that
the pocket veto could only be used under limited circumstances, so
I ask unanimous consent that this memorandum be placed in the
record at this point.
[Material follows:]
177
Oliict of tfjc Solicitor >tntval

Klacfjinglon, JD.C. 20530
January 26, 1976
MEMORANDUM TO THE ATTORNEY GENERAL

FROM: SOLICITOR GENERAL
RE: POCKET VETOES
Recommendations:. (1) We recommend that the

Attorney General be authorized to make the following public
announcement on behalf of the President:
President Ford has determined that he
will use the return veto rather than the
pocket veto during intra-session and inter-
session recesses and adjournments of the
Congress, provided that the House of Congress
to which the bill and the President's objections
must be returned according to the Constitution
has specifically authorized an officer or other
agent to receive return vetoes during such
periods.
(2) In accordance with the position expressed in
the foregoing announcement, we further recommend that the
Department of Justice be authorized to accept judgment in
Kennedy v. Jones, Civil Action No. 74-194 (D. D.C.).
This recommendation is based upon our analysis of
constitutional policy as well as our estimate of the likely
outcome of litigation. This memorandum first sets out a Summary
of its analysis and then in more detail discusses (1) the text
and apparent policy of the Constitution, (2) pertinent judicial
decisions, and (3) possible objections to our recommendations.
SUMMARY
The constitutional text limits the use of the
pocket veto to circumstances in which Congress, "by their
Adjournment," has prevented use of the return veto. The
constitutional question is, therefore, when does Congress1
adjournment prevent the President from returning a bill with
his objections. As a matter of pure logic, the answer to
that question would be (1) during a recess when no agent of
178
-15-
would view sympathetically an argument that any future decision
by it concerning the scope of the Pocket Veto Clause should be
applied prospectively only.
F. A construction of the Pocket Veto Clause prohibit-
ing the President from pocket vetoing bills "during a temporary
recess or adjournment creates a dancer tnat the circumstances
attending tne President's decision to return veto a particular
bill will have changed dramatically by the time the Congress
has reconvened.
Since the Constitution does not place any limits upon
the Congress1 power to delay the presentation of an enrolled
bill to the President, the danger that circumstances may change
between the time of the President's consideration of a bill and
Congress1 reconsideration of that bill is unavoidable.
G. It is unrealistic to believa that the President
can adopt the position that pocket vetoes are impermissible
except following a final adjournment of the Congress without
destroying the ability of his successors to assert the contrary.
We agree that a practice of using return vetoes instead
of pocket vetoes will make it more difficult for a later President
to use pocket vetoes. If the use of return vetoes is the sounder
constitutional practice, however, that is not an objection but a
proper result. The significance of this consideration is, in any
case, substantially undermined by the very probable outcome of a
Supreme Court test of the scope of the Pocket Veto Clause.
179
Senator HATCH. Judge, Senator Kennedy said when it counted
you were not there on some of these items, but I think what you
have been able to show here today is that these major issues are
not easily explained in 30-second bites that we people in Congress
are used to popping off about; is that correct?
Judge BORK. Well, Senator, if you are suggesting that I have
proved that I cannot explain them, I do not want to accept that. It
is hard to discuss a complex issue in 30 seconds. That is correct.
Senator HATCH. The fact of the matter is most of these are very
complex issues and there are people on both sides of them and they
do not particularly get stereotyped easily in conservative or liberal
categories.
Judge BORK. Senator, let me say something I should have said
before, and that is, I am willing to engage in an abstract discussion
of large principles and generic classes and so forth. However, when
you are a judge, the cases do not come to you that way. They come
in gray areas with difficult facts, and so forth. So I think this dis-
cussion is useful but it by no means is the way a judge goes about
his business.
Senator HATCH. Well, what I am concerned about is the way
your record is being distorted, some of the inflammatory rhetoric;
some of the, I think, unuseful and really false methodology being
used; the inappropriate use of statistics, for instance, only examin-
ing cases where there is disagreement, which is only 14 percent of
your total case load; ignoring all of the other things that you have
done and ignoring what you stand for and using language like,
well, when it counted you were not there, because you have been
there.
On restricted covenants, one of the big issues that has been
raised by your detractors or opponents, it is because you criticized
Shelley v. Kraemer. You were criticizing it because you questioned
the processyour main question was what was State action, is that
correct?
Judge BORK. That is correct.
Senator HATCH. That's a very important legal issue, isn't it?
Judge BORK. Yes. It's a crucial legal issue because
Senator HATCH. YOU weren't for restricted covenants, were you?
Judge BORK. I never have been.
Senator HATCH. AS a matter of fact, as Solicitor General, you
argued against restricted covenants in the Runyon v. McCrary case,
is that correct?
Senator HATCH. Well, a lot of these are explained that way, if
you take the time to look into them and you don't just take 30-
second bites, and you look at it fairly and you treat these fairly. I
think that's what you're bringing across here today, is that literal-
ly these are complex cases; they aren't easy to decide. There are
legitimate viewpoints on both sides, and in almost every case that
you have given us today you have listed some of the most outstand-
ing luminaries in the field of law, including former Supreme Court
Justices and sitting Supreme Court Justices with whom you agreed
and who agreed with you; is that right?
The CHAIRMAN. Senator Hatch, let me just make a comment.
180
Judge, do you feel you have been required to answer in 30-second
bites?
Judge BORK. No, but I think that's a temptation I sometimes fall
into.
The CHAIRMAN. I just want to make it clear, you have as much
time as you want. I literally mean that. If you want to take 20 min-
utes to answer a single question, or an hour, you have the time.
Senator HATCH. I would like to be able to use my time.
The CHAIRMAN. NO, it will not be taken out of your time.
I just want you to know that, Judge. Do not feel at all con-
strained. Take as much time as you want.
Judge BORK. I think there's a natural tendency, knowing that a
Senator wants to go on with further question, not to bog him down
with a long answer. I will try to get over that natural tendency.
The CHAIRMAN. GO ahead and bog us down. We are trying to find
out what you think, and you may use as much time as you want.
Senator HATCH. Judge, you're doing very fine in your concise and
cohesive answers. As a matter of fact, I don't see how anybody
watching this could doubt that you're an eminent scholar, with a
brilliant mind, who is in the mainstream of judicial life, who in sit-
ting in more than 400 cases on the Circuit Court of Appeals for the
District of Columbia has never been reversed, who has been within
the mainstream with his liberal colleagues on the Courts, if that's
an appropriate term, as you have with your conservative col-
leagues, having agreed 90 percent of the time with Judge Ruth
Bader Ginsburg, 83 percent of the time with Judge Mikya, right on
down to Judge Skelly Wright around 75 percent of the time.
That doesn't sound to me like you're outside of the mainstream,
since you're agreeing with your liberal colleagues. But they have
chosen in some of these critical articles to criticize you on 14 per-
cent of your cases, where there is tremendous controversy. That's
unfair, and we have a tendency up here, as Senators, because we
don't have the time to go into the nuances of these cases as you
judges do, to look at everything in terms of 30-second bites for us
on television. That's my point, not you.
Now, in recent years we have heard a great deal of commentary
about the problems of judicial activism. How would you define judi-
cial activism, because this seems to be really one of the central
core matters here.
Judge BORK. I think I would define it as a judge reading into a
statute or into the Constitution his personal policy preferences
and let me be clear about this.
No human being can sit down with words in a statute, with his-
tory and the other evidence he uses, and not to some extent get his
personal moral view into it, because each of us sees the world, un-
derstands facts, through a lens composed of our morality and our
understanding.
But there is an enormous difference between that inevitable bias
that gets in and a judge who self-consciously tries to keep his
biases out and tries to be as impartial on the evidence as he can be.
There's an enormous difference between that and a judge who in-
corporates his idea of wise policy into the Constitution or into a
statute and, as a matter of fact, if you're familiar with the academ-
ic legal debate, most of those writing in the law schools these days
181
seem to prefer the latter kind of a judge, one who does not confine
himself to the historical principles of the Constitution.
Senator HATCH. In other words, in simple terms, judicial activism
is when judges make law rather than interpret the law?
Judge BORK. That is a good shorthand description.
Senator HATCH. The fact of the matter is that you, as a federal
judge, weren't elected to that position; is that right?
Senator HATCH. You're not elected to make laws.
Judge BORK. I'm not. If I were, if I were going to make laws, then
this hearing should consist of me making campaign promises on
how I will vote on various cases.
Senator HATCH. That's what these hearings will be if we contin-
ue to politicize
Judge BORK. I'm afraid of that.
Senator HATCH. This may occur as well when judges make a gen-
eral statement of law and stretch it to cover instances beyond that
which the authors really intended; is that right?
Senator HATCH. And that's what you mean by original intent?
Judge BORK. That's correct.
Senator HATCH. And it doesn't just mean original intent of the
Founding Fathers or the original meaning of what they meant; it
means the original intent of us Members of Congress who are elect-
ed representatives to make these laws to the people, is that right?
Judge BORK. That is correct, Senator.
Senator HATCH. NOW, I realize that you have been long known as
a most eloquent, consistent and brilliant exponent of the classic
theory of judicial restraint.
What is meant by judicial restraint?
Judge BORK. It means that a judgeI've never liked the word ju-
dicial activism. I prefer something else. Because a restrained judge
should be active in defending those freedoms and powers that are
actually in the Constitutionshould give them liberal construction.
But he should not go beyond that, and that is judicial restraint. It
is the morality of the jurist who self-consciously renounces power
and tries to enforce the will of the lawmaker.
Senator HATCH. When courts read into the Constitution or par-
ticular pieces of legislation policies and rights that are not there,
what happens to the ability of the legislatures of the respective
States or of the Congress itself to make laws according to the needs
of the people?
Judge BORK. The people and their representatives have suddenly
been ousted from an area that was legitimately theirs and the
courts begin to set a social agenda instead of the people setting
their social agenda.
Senator HATCH. When I talk about judicial activism, you don't
like the term, but let me at least use that term because we have
defined it here.
Judge BORK. All right. I'll accept it.
Senator HATCH. Can judicial activism be employed just as easily
as conservativeto reach illegitimate conservative as well as ille-
gitimate liberal end results?
182
Judge BORK. Up until the mid-1980s, as we all know, Senator, a
conservative majority on the Supreme Court was reading its eco-
nomic preferences into the Constitution.
Senator HATCH. That's why we had the child labor laws in the
Lochner era and all those difficulties.
Judge BORK. Labor laws were being struck down, laws protecting
workers were being struck down. That changed. I don't think activ-
ism is any more proper for a conservative than it is for a liberal.
That's why I don't think my philosophy of judging has anything to
do with liberalism or conservatism.
Senator HATCH. The thing that is interesting to me is that you
have a reputation for being squarely against both forms of judicial
activism.
I rememberand I sat there in the hearings when you testified
against the so-called human life bill, or human life amendment.
That bill basically would have allowed the Congress of the United
States to overrule Roe v. Wade by simple statute. You came in and
testified against that. Why?
Judge BORK. Because I think it is unconstitutional for the Con-
gress to try to change a Supreme Court decision by statute. It has
been allowed once or twice by the Supreme Court, but I don't think
it's proper.
I criticized Roe v. Wade at that time, but I also opposed any
effort to change it by statute or to take away the Supreme Court's
jurisdiction over the subject.
Senator HATCH. I agree with you. At the time I voted to put it
out of subcommittee, but I was going to vote against it in full com-
mittee but it never came up again, and it was precisely because of
your arguments that it was basically defeated. I don't think con-
servatives are any more justified in trying to impose their conserv-
ative activism than liberals are in the courts.
Now, in this context, I think it is helpful to re-examine this case
for a few minutes, Griswold v. Connecticut. And this case, as you
defined it, was when the Supreme Court invalidated a Connecticut
law banning the use of contraceptives.
In the first place, do you, as a personal matter, have anything
against the use of contraceptives of the personal choice of individ-
uals to use them or not?
Judge BORK. Nothing whatsoever. I think the Connecticut law
was an outrage and it would have been more of an outrage if they
ever enforced it against an individual.
Senator HATCH. But they never did.
Judge BORK. NO.
Senator HATCH. YOU will not be surprised to know that your per-
sonal feelings about the Connecticut law are similar to those of
Justice Hugo Black, the primary dissenter in the Griswold case. He
said, "I feel constrained to add that the law is every bit as offensive
to me as it is to my brethren in the majority." Nonetheless, Justice
Black, who certainly was one of the great all time Justices in our
age, who was joined by Justice Stewart, whose wonderful wife is
here with us todayand, of course, he was another judicial giant,
in my opinionthey both dissented in that case.
Now, can you explain why these great jurists could have allowed
that law banning contraceptives to stand?
183
Judge BORK. Justice Stewart called it an uncommonly silly law,
which I think it certainly was, at a minimum. I think they would
have allowed it to stand simply because they could find no warrant
in the Constitution for them, as judges, to override a legislative en-
actment.
Senator HATCH. In other words, there was no source of authority
within the Constitution to rule the way they ruled?
Judge BORK. That is what they concluded.
Senator HATCH. SO these two principal jurists, both of whom de-
rided the particular law, agreed with youor should I say you
agreed with them?
Judge BORK. I think the latter is the better form, Senator.
Senator HATCH. I can certainly understand that there is a priva-
cy protection in the Constitution, in the sense of guarantees
against unreasonable searches of one's home, and the prohibition
of laws that abridge free speech and the free exercise of religion.
Those are areas where there is no question about the right of pri-
vacy, is there?
Judge BORK. None whatsoever.
Senator HATCH. But what did Justice Black say about the gener-
al right of privacy discussed in that case?
Judge BORK. Well, as I recall, didn't he say it was the old natural
law theory of judging? You write your own policy prescriptions into
the statute.
Senator HATCH. That's basically what he said.
What did Justice Black say about the scope of the so-called priva-
cy right that is no where found in the Constitution?
Judge BORK. I think he said it was utterly unpredictable. I don't
recall his exact words, but nobody knows what the scope is.
Senator HATCH. He indicated that it was incapable of being limit-
ed or defined, other than by arbitrary judicial fiat; isn't that cor-
rect?
Judge BORK. That's true, and that is
Senator HATCH. And that's what you were concerned about?
Judge BORK. That's what I meant when I said that, you know,
privacy to do what? We don't know. Privacy to take cocaine in pri-
vate; privacy to fix prices in private; privacy to engage in incest in
private? The Supreme Court is not going to do those things, but we
don't know why.
Senator HATCH. We all have to agree that privacy is a very at-
tractive concept. We all want privacy, don't we?
Judge BORK. We do.
Senator HATCH. IS the legal doctrine in question here about the
kind of privacy we all desire, or is it actually a term used to deal
with some questions with very public implications?
Judge BORK. Well, it certainly deals with some cases with public
implications, that's right.
Senator HATCH. Once again, what would happen if judges began
to discover or create new rights in the Constitution, such as the
right to be let alone, or the right to be free of taxation, or the right
to a balanced budget?
Judge BORK. That's right. I remember some judges who sued
under the Constitution for the right to an indexed salary.
Senator HATCH. I agree that
184
Judge BORK. And they quite properly lost.
Senator HATCH. Actually, some of those rights would seem very
attractive. A right to be let alone. You know, some judge could just
say "well, we all ought to have that right", if he wanted to, but it
isn't in the Constitution.
Judge BORK. Judging requires careful thought and the making of
close distinctions. Once you just put rhetoric into the constitutional
adjudication, you don't know where it will go or what it will do.
Senator HATCH. What happens if the courts start creating rights
that are not found in the Constitution?
Judge BORK. In my view, it's illegitimate.
Senator HATCH. Well, we're going to be a government not of laws
but of the whimsies of the courts; isn't that right?
Judge BORK. Yes.
Senator HATCH. Isn't that basically your criticism?
Judge BORK. That's basically what I have been objecting to for 16
years, and throughout these hearings.
Senator HATCH. It has got to be a little irritating to you as it has
to be to anybody who is fair-minded, to be criticized for having
criticized Griswold v. Connecticut on the grounds that you might
possibly have wanted to sustain that statute, any more than it was
the desire of Hugo Black or Mr. Justice Potter Stewart to have
done that.
Judge BORK. It is, Senator, as you know, a regular form of rheto-
ric to say that, if you would say a statute is not unconstitutional,
that must be because you like the statute. That is not right. The
question is never whether you like the statute; the question is, is it
in fact contrary to the principles of the Constitution.
Senator HATCH. I think I'm starting to understand why you have
never been reversed, Judge. I hope the people in this country are,
too, because you're right down the middle on these things. You just
want the laws to be made by elected representatives and the judges
to interpret those laws in accordance with appropriate constitution-
al application.
Judge BORK. That is true, Senator.
Senator HATCH. I don't know how anybody could find fault with
that. And in every one of these cases, I think when you get into the
complexities, I think the American people would basically say "I
might disagree with Judge Bork on the philosophy on some of
these cases, but I cannot disagree on the jurisprudence or the
actual application of law." I think most people would feel that way.
By the way, this discussion leads to another important case gov-
erned by the so-called privacy doctrine, and that is the case of Roe
v. Wade. You have been criticized for having been critical of this
abortion case called Roe v. Wade.
Can you explain your apprehensions about this particular case?
Judge BORK. It is not apprehension so much, Senator, as it isIf
Griswold v. Connecticut established or adopted a privacy right on
reasoning which was utterly inadequate, and failed to define that
right so we know what it applies to, Roe v. Wade contains almost
no legal reasoning. We are not told why it is a private actand if
it is, there are lots of private acts that are not protectedwhy this
one is protected. We are simply not told that. We get a review of
the history of abortion and we get a review of the opinions of vari-
185
ous groups like the American Medical Association, and then we get
rules.
That's what I object to about the case. It does not have legal rea-
soning in it that roots the right to an abortion in constitutional
materials.
Senator HATCH. Well, let me just say this.
By the way, I presume your concerns about the reasoning of the
Roe v. Wade case do not necessarily mean that you would auto-
matically reverse that case as a Justice of the Supreme Court?
Judge BORK. No. If you want to hear me on that, I will tell you
exactly what I would consider.
Senator HATCH. We would be glad to hear it.
Judge BORK. If that case, or something like it, came up, and if
the case called for a broad up or down, which it may not, I would
first ask the lawyer who wants to support the right, "Can you
derive a right of privacy, not to be found in one of the specific
amendments, in some principled fashion from the Constitution so I
know not only where you got it but what it covers."
There are rights that are not specifically mentioned in the Con-
stitution, like the right to travel. You know, it's conceivable he
could do that, I don't know. If he could not do that, I would say,
"Well, if you can't derive a general right of privacy, can you derive
a right to an abortion, or at least to a limitation upon anti-abortion
statutes legitimately from the Constitution?"
If after argument, that didn't sound like it was going to be a
viable theory, I would say to him, "I would like you to argue
whether this is the kind of case that should not be overruled." Be-
cause, obviously, there are cases we look back on and say they were
erroneous or they were not compatible with original intent, but we
don't overrule them for a variety of reasons.
A moment ago, in response to a question, I ran through some of
the factors. So I would listen to that argument.
As I have said before, a judge with an original intent philosophy,
which goes back, by the way, to Marshall and Joseph Story, needs
a strong theory of precedent to keep from getting back into matters
that are long settled, even if incorrectly settled.
Senator HATCH. So as a judge, you would have to take into con-
sideration such factors as continuity, predictability of the law, facts
of the case and so forth.
Would it be safe for me to assume, or members of this committee
to assume, that you do not know yourself how you would rule on
an abortion case if it came before the Supreme Court until you
have all the facts?
Judge BORK. That is true. I have discovered that, to my chagrin,
on my present court. You think you know something about a sub-
ject, until you get the briefs and hear the argument and you decide
it is much more complex than you thought it was. But I have tried
to indicate the general factors that I would look at. There may be
some lawyer that will suggest some that I haven't thought of.
Senator HATCH. I would also presumeand correct me if I'm
wrongthat you have taken no public position on the political or
social merits of abortion?
186
Judge BORK. The only position I have taken was the opposition to
the human life bill and the opposition to taking away the Supreme
Court's jurisdiction.
Senator HATCH. I think it would be helpful to examine the char-
acter of the legal scholarship that has voiced apprehensions similar
to yours on this case, since you have been criticized by some of my
colleagues as being outside of the mainstream, because of your
criticisms of the so-called Roe v. Wade case.
For example, Gerald Gunther of the Stanford Law School cites
Roe as an instance of the "bad legacy of substantive due process
and ends-oriented" judging.
Professor Archibald Cox of Harvard notes that the "court failed
to establish the legitimacy of the decision by not articulating a pre-
cept of sufficient attractiveness to lift the ruling above the level of
a political judgment."
By the way, let's pause here. What do you suppose Archibald Cox
meant when he said that the decision was not legitimate?
Judge BORK. I suppose he means it comes out of noso far as he
can seecomes out of no legitimate constitutional materials, which
are primarily text, history and constitutional structure.
Senator HATCH. DO you agree with that?
Judge BORK. Yes.
Senator HATCH. Let's continue. Dean John Ely of Stanford, who
also favors abortion, says along with Archibald Cox "It is not a con-
stitutional principle and the court has no business trying to impose
it."
Professor Bickel, who I think is respected by almost everybody,
who is studied in the law, also criticized the Roe decision for being
legislation but not legal action. You're aware of that. In fact, this is
the very point made by Justices White and Rehnquist. In fact, in
later decisions, Justice O'Connor, the nation's first woman Justice,
also criticized harshly the Roe opinion.
You could go on. Professor Forrester of Cornell calls the case
"interventionist", and Professor Kirland of Chicago calls it "a bla-
tant usurpation".
In your lengthy constitutional studies, is there any Supreme
Court decision that has stirred more controversy or criticism
amongst scholars and citizens than that particular case?
Judge BORK. I suppose the only candidate for that, Senator,
would be Brown v. Board of Education. It is possible, you know, for
the Supreme Court to be
Senator HATCH. Or possibly the Bred Scott case.
Judge BORK. Yes, that's right.
Senator HATCH. Where there might be some parallels.
Judge BORK. But in my lifetime, those two. And it's possible for
the Supreme Court to be entirely right and get an enormous
amount of heat, and it's possible for it to be wrong and get an enor-
mous amount of heat. So the controversy surrounding it isn't really
the way I judge the correctness of the decision.
Senator HATCH. That's right, and I think that's starting to come
across. I think that you're refuting your extraordinarily extreme
critics, which I think are misrepresenting, in their full-page ads
and a whole raft of other things what you stand for and what you
do as a judge.
187
In any event, it is clear to me, and I think to others that listen,
that your apprehensions about the reasoning of the Roe v. Wade
case are shared by some of the legal minds of our age on both sides
of the issue.
Let me ask one further question on this case, however. If you are
confirmed, and the abortion decision comes to you, will you de-
scribe how you would approach the case? I'm interested to know
whether or not you have already prejudged this issue or whether
you will keep an open mind with regard to the case that comes
before you.
Judge BORK. I think I have listened to arguments in every case,
Senator, and sometimes I don't think somebody is going to be able
to make it in an argument, and sometimes they do make it, despite
my initial doubts.
But as I have mentioned to you, I would ask for a grounding of
the privacy right and a definition of it in a traditional, constitu-
tional reasoning way. As I say, if that can't be done, I will ask for a
rooting of the right to an abortion, or some right to an abortion of
some scope, in traditional, legal, constitutional materials. And if
that can't be done, then I would like to hear argument on stare de-
cisis and whether or not this is the kind of case that should or
should not be overruled.
Senator HATCH. I acknowledge that you have encountered only
one case similar to Griswold and Roein other words, the contra-
ceptive case and the abortion caseon the D.C. Circuit, and that
was the important Dronenberg v. Zech case.
Now, this is a case that is cited by your critics as evidence for
your antipathy to the so-called right of privacy. Could you describe
the facts of that case?
Judge BORK. That was a case in which the Navy discharged, hon-
orably, I think it was a petty officer for engaging in homosexual
conduct in the barracks with a junior, subordinate. The Navy has a
regulation against homosexual conduct, not against the status of
homosexuality, but against homosexual conduct in the service.
The discharged sailor sued, alleging, among other things, that he
had a right of privacy to engage in homosexual conduct in the
Navy, and that that flowed from Griswold and Roe.
Our panel of the court disagreed. We thought the right of priva-
cy was relatively undefined, but we saw no principle in the Su-
preme Court's jurisprudence on the subject which would lead us to
tell the Navy it could not ban that kind of conduct.
Later the Supreme Court, in Bowers v. Hardwick, upheld a much
more severe regulation. After all, all we said was that the Navy
was entitled to discharge this fellow honorably. In Bowers v. Hard-
wick, they allowed the criminalizing of civilian homosexual con-
duct, which is a much larger step than we took.
Senator HATCH. Your holding in that case was basically merely a
finding that the doctrine of privacy could not be expanded to cover
consensual sodomy; is that right?
Senator HATCH. And as I understand it, there was unanimous
consensus or agreement by the three-judge panel?
Senator HATCH. Who were the other two judges besides yourself?
188
Judge BORK. Judge Scalia, and I think it was Judge Williams
from the ninth circuitis that correct?
Senator HATCH. And you say that the Supreme Court later, in a
precisely similar case, upheld your particular point of view?
Judge BORK. Yes. Well, it wasn't precisely similar. I think that
was a harder case for the court.
Senator HATCH. You're talking about the Bowers v. Hardwick
case?
Judge BORK. Yes.
Senator HATCH. Okay. But it was consistent, though
Judge BORK. Oh, certainly.
Senator HATCH [continuing]. With your particular decision, is
that correct?
Senator HATCH. By the way, your critics like to state that you
wiped away selected Supreme Court decisions, by which they mean
you failed to follow the privacy doctrine when you ruled on the
Dronenberg case. But the Supreme Court didn't feel that way when
it wiped it away, too, in its decision. That's a majority of the
present Supreme Court, right?
Judge BORK. Well, that s the trouble. It wasn't clear what the
privacy principle covered. So in deciding it did not cover homosex-
ual conduct in the Navy, we didn't necessarily wipe away any
cases. We just said that we didn't see that the principle covers this
case.
It it impossible for a Court of Appeals judge, or any one judge, to
wipe away Supreme Court cases.
Senator HATCH. YOU decided one other case of a related issue,
and that was the Franz case. In that case, a woman was relocated
under the Federal Witness Protection Program. She and her chil-
dren were given new identities in order to protect their lives. Of
course, the plaintiff in that case, Franz, was her ex-husband, and
he wanted to find out where they were.
Now, that seems to me to be an extraordinary case. They were
given witness protection and he wanted to find out where they
were, and the competing interests are both very compelling in a
case like thatthe right of the husband to see his children, and
the right of the wife to be protected from disclosure.
Could you give me your reasoning in that case?
Judge BORK. Senator, as I recall that caseand I haven't read it
for a long timeI think that I was concerned that we were being
asked to apply a constitutional principle, asked to create a constitu-
tional principle, when I didn't think Congress had faced the issue. I
wanted Congress to face the issue before we did, which seems to me
to be always appropriate, because the legislature, when it becomes
aware of the problem, may make all kinds of adjustments and so
forth to the problem, so that it is not necessary for a judge to begin
to apply the Constitution.
I was convinced that Congress had not faced that problem, so I
proposed to say that Pennsylvania domestic relations law probably
interfered with what was done, that that gave this fellow a right to
see his children, and that Congress had not preempted Pennsylva-
nia domestic relations law, had shown no desire to. I wanted in
that way to send the case back so that the Congress would have to
189
decide whether or not it wished to preempt domestic relations law
and do what was, after all, a very drastic thing. That was my posi-
tion in that case.
Then, if Congress wanted to do it, we would have to face the con-
stitutional issue.
Senator HATCH. Your decision in that particular case has been
attacked as denying a father the right to visit his child.
Judge BORK. I did not do that.
Senator HATCH. AS a matter of fact, you remanded the case to
enable the father to continue his legal battle to enforce his State-
created visitation rights. You did not deny him access, but you kept
that door open. But again, it shows how they are distorting your
record with their inflammatory rhetoric and I think doing you a
great injustice.
It is, I think, to show that these are the hardest cases. I am sure
that there are valid and very strong interests on both sides of these
types of cases, and it seems to me unfair, however, to attack you
for ruling against one interest without mentioning that an even
more compelling interest was on the other side of the case. That
seems to me to be one of the hallmarks of this political campaign
against you.
Judge BORK. Well, Senator, I don't know that I ruled against an
interest. I do think judges have a role to play sometimes in bring-
ing issues to the attention of the legislature that the legislature
hasn't focused upon, and the preferred solution is a legislative solu-
tion. Then the court has to act if the solution isn't a good one.
Senator HATCH. Thank you.
Now, the Skinner case was brought up. In your 1971 Indiana
Law Journal article you commented on the Supreme Court's deci-
sion in Skinner v. Oklahoma in 1942. In that decision, the Court
struck down as unconstitutional, under the equal protection clause,
a law that provided for sterilization of convicted robbers but not of
embezzlers.
Now, some have taken your comments in 1971 out of context. As
I understand it, your only point there in your article was that the
case was defective as a matter of legal protection analysis.
Judge BORK. Senator, could you point me to the page where I
said these things?
Senator HATCH. Well, I'm just kind of summarizing what I
thought you stood for.
Judge BORK. Okay.
The CHAIRMAN. Don't worry. He'll take care of your interests,
Judge.
The CHAIRMAN. I said don't worry, he'll take care of your inter-
est.
Judge BORK. I know. But I
Senator HATCH. Judge, I think you're doing a pretty good job of
taking care of it yourself.
Judge BORK. I just thought I would enjoy it more if I had the
page.
Senator HATCH. Judge, you don't need me to take care of your
interests.
190
But the point is, you weren't suggesting, I take it, that there was
no basis at all for that decision in the entire Constitution, such as
the eighth amendment prohibiting cruel and unusual punishment;
is that correct?
Senator HATCH. YOU were just questioning the source of constitu-
tional authority, the way it was used at that particular time?
Judge BORK. This entire article, Senator, is that kind of thing. At
one point, on page 11, I stop, after criticizing a string of cases, and
say that some of them maybe you could reachI said some of them
are in political agreement, and perhaps Pierce could be reached on
acceptable grounds, but there is no justification for the Court's
methods. That's what I have been talking about. In fact, more than
Pierce could be reached on acceptable grounds; Meyer v. Nebraska,
which invalidated a statute that prohibited the teaching of children
in a foreign language, could also be reached on an acceptable
ground.
But what I was focusing on here is the court's reasoning, because
a judge has no mandate to govern from any source other than his
logical demonstration that he got out of the legal materials. If a
judge doesn't demonstrate that, then we're entitled to be uncon-
vinced by the result.
Senator HATCH. That's coming across, I think, very well. I think
for those who have studied your record and those who really do it
fairly, they're going to conclude that you're testifying very truth-
fully here, and I think accurately and honestly and very intelli-
gently.
Let me just end with this. I was interested in Senator Kennedy's
comments about you and your writings and other lectures about
the rights of women.
Before heightened scrutiny was employed in the equal protection
analysis, the reasonable basis test that you advocated was used to
strike down gender discrimination. In other words, the very test
that Senator Kennedy was criticizing, saying it was used to uphold
gender discrimination, was actually used to strike down gender dis-
crimination.
For example, in the Reed v. Reed case, which struck down a law
that preferred men over women in the appointment of administra-
tors of the States, it's a perfect illustration where the reasonable
basis test that you believe in was used to benefit women.
Moreover, in the Claiborne case, your reasonable basis test was
employed to strike down discrimination against the retarded.
Judge BORK. Yes.
Senator HATCH. And you're aware of that.
In that case, Justice Stevens made the same point you have
made today; that is, that the equal protection clause of the Consti-
tution of the United States of America applies to everyone, not just
selected people, not just one special class, or not just one person
over another. And I think your views harmonize with Justice Ste-
vens, and I think they surely indicate that you're in the main-
stream.
In every one of these casesand I think the importance of your
testimony here todayit is not only that you're extremely intelli-
gent, one of the great judicial minds of our country, but that you're
191
in the mainstream. You have shown it through the opinions that
you've written, I think by the articles that you have written, that
have always had a strong and good legal underpinning to them.
You have shown it through indicating to the people of America
today who are watching this on television that these cases are com-
plex, they're not simple, little bitty things, and there are usually
good arguments on both sides of the case, and generally compelling
arguments, and you have to, as a judge, honestly make the best de-
cisions that you can with regard to each case.
In every case in your 5 years on the Circuit Court of Appeals for
the District of Columbia, the most important appellate court in the
country except for the Supreme Courtand some actually believe
it may be more important because of the broad range of cases the
Supreme Court never sees that you dothat you have been in the
majority an awful lot and you haven't been reversed, and you have
had the Supreme Court adopt your actual language time after
time.
Now, I think that stands you in good stead. I think it is time for
the American people to realize that what is involved here is really
politics. Your opponents will try to show where you're an inad-
equate judge, or that you're unethical, or that you don't have abili-
ty, or your intellectual reasoning is not adequate or within the
mainstream, they can't show it by your opinions or by your writ-
ings.
What they have done, the thing that I find really reprehensible,
as I have looked at all these various groups out there who are criti-
cizing you and have done it very selectively, they have been very
selective in the use of their evidence, they have been selective in
the use of their statistics, they have been improper in the use of
their rhetoric, they have been inflammatoryIf you look at these
full-page ads, it makes you wonder how anybody could support
some of these organizations in coming up with that, I should say,
"clap trap" that really doesn't deserve to be injected into this type
of an important nomination.
I just want to say to you, I have watched you for many, many
years. You and I differ on the balanced budget amendment. We
differ on the Constitutional Conventions Procedures bill, and on
whether or not a convention can be limited to the single issue for
which it's set up for. We differ on the innercircuit tribunal and we
differ on diversity jurisdiction, and I am sure there are some other
issues as well. But the point I'm saying is, it isn't important that
we differ. What is important is the type of person you are, the rep-
utation that you have, the intellect that is compelling, and the rea-
sons why people like Chief Justice Burger have given you the acco-
lades that they have, people who have sat there and people who
know.
What really appalls me is how some of these law professors
across this country have interjected some of these nuances into this
that really don't deserve to see the light of day. I am very disap-
pointed. And what really has me outraged is the same American
Bar Association that found you unanimously exceptionally well
qualified back in 1981, just a week ago had four of the 15 say that
you're not qualified.
192
Judge BORK. I think it should be mentioned, Senator, that I
think
Senator HATCH. Wait. Let me just finish. I'm going to conclude.
Now, ten of them have said you have the highest rating you
could possibly have. That bothers me a lot. I'll tell you, I hope it
bothers the American people.
I want to thank you, Judge. You have been very candid, I think
you have been candid to all of us, and I appreciate the testimony. I,
for one, admire your legal intellect.
Judge BORK. Thank you very much, Senator.
Senator HATCH. Thank you, Mr. Chairman.
The CHAIRMAN. Judge, there is much I also admire about you,
particularly your physical constitution, to sit there all these hours.
We are going to end the hearing now, but I would like you to
think about tomorrow on how you would like to go about this, in
terms of the length of time. You're the one sitting there. At some
time tomorrow you and I can speak, or your representatives, but I
want to make it clear that I am prepared to go as long and expe-
dite this as rapidly as you would like. But I also understand there
are limitations to anyone's ability to physically sit there that long.
So I will need some guidance from you as we go.
I would like very much to move on. Possibly we could finish with
you as a witness tomorrow. I don't know that. We have seven more
of my colleagues, which will take us into mid-afternoon. Then there
will be a second round. But I would like you to be thinking about a
time frame in which you would like to proceed tomorrow.
Judge BORK. Thank you very much, Mr. Chairman. That's very
kind of you. I seriously doubt, with seven more Senators to take
the time, plus the second round, that we can conceivably finish to-
morrow.
The CHAIRMAN. Well, let's you and I, after lunch, talk, because
again, I mean this sincerely, I would like very much to accommo-
date what I know if I were in your spot would be a very difficult
seat to be physically sitting in. I don't mean difficult in answering.
Judge BORK. What I meant by not finishing tomorrow was, if we
can't finish tomorrow, by going to 8 or 9 o'clock, then I would
prefer not to go to 8 or 9 o'clock and finish the following day.
The CHAIRMAN. Why don't we talk after lunch.
The hearing is adjourned until 10:00 o'clock tomorrow morning,
when Senator Metzenbaum will begin the questioning.
[Whereupon, at 6:34 p.m., the committee was adjourned.]
WEDNESDAY, SEPTEMBER 16, 1987

U.S. SENATE,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room SR-
325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr.
Also present. Senators Thurmond, Kennedy, Metzenbaum,
DeConcini, Leahy, Heflin, Simon, Hatch, Simpson, Grassley, Spec-
ter, Humphrey and Byrd.
The CHAIRMAN. The hearing will come to order, please.
Good morning, Judge BORK, and welcome back.
Judge BORK. Good morning, Mr. Chairman.
The CHAIRMAN. We left off the questioning yesterday; in the first
round with Senator Metzenbaum to start today, I would like to
briefly discuss today's schedule and then proceed with Senator
Metzenbaum's questions.
Today is an important day on the Hill. The President is coming
up to speak on the Capitol steps. I would suggest, unless any of my
colleagues have a different view, that we recess at 12:30, or as close
thereto, as we finish up whomever has that round, finish up be-
tween 12:30 and 1 and recess until 2:30. I understand the President
may be here until 2 or thereabouts; I am not certain of that.
If that is agreeable with my colleagues and with you, Judge,
somewhere after 12:30, before 1, we will stop, reconvene at 2:30,
and make a judgment at that time how late we will go today and
whether or not, Judge, it will be necessary for you to come back
tomorrow. Quite frankly, I think it probably will be. I do not think
we will finish today. You and I have discussed it; if we can finish
today without it going very late, we will try. If not, we will come
back tomorrow.
Does the ranking member have any comment he wishes to
make?
Senator THURMOND. Thank you, Mr. Chairman. I do not have
any comment. I think we can just move along as fast as we can.
The CHAIRMAN. I yield to the Senator from Ohio, Senator Metz-
enbaum.
Senator METZENBAUM. Thank you, Mr. Chairman.
Good morning, Judge Bork.
Judge BORK. Good morning, Senator.
(193)
194
Senator METZENBAUM. Judge Bork, I want to ask you some ques-
tions about your decision to fire Special Prosecutor Archibald Cox.
President Nixon first asked Attorney General Richardson to fire
Cox, but as we know, Richardson refused and resigned. Deputy At-
torney General Ruckelshaus also resigned, but you agreed to stay
on and fire Mr. Cox.
The regulation in effect when you fired Mr. Cox flatly prohibited
firing him unless he engaged in extraordinary improprieties, which
he clearly did not. That regulation had the force and effect of law.
Under these circumstances, your firing of Mr. Cox was a violation
of the law, was it not?
Judge BORK. NO, I do not think it was, Senator.
Senator METZENBAUM. The court said it was. The court in Nader
v. Bork stated, "The firing of Archibald Cox in the absence of a
finding of extraordinary impropriety was in clear violation of an
existing Justice Department regulation having the force of law and
was, therefore, illegal."
So when you say it was not, you are saying that the court's deci-
sion meant nothing.
Judge BORK. I did not say it meant nothing. I think it is wrong,
Senator, and I will be glad to explain why I think so.
Senator METZENBAUM. YOU have argued that the regulation pro-
hibiting the firing of Mr. Cox was a technicality, but the court
which reviewed the matter found that you "abolished the Office of
Watergate Prosecutor on October 23rd and reinstated it less than 3
weeks later under a virtually identical regulation. It is clear," said
the court, "that this turn-about was simply a ruse to permit the
discharge of Mr. Cox. Defendant's order revoking the original regu-
lation was, therefore, arbitrary and unreasonable and must be held
without force or effect."
The court further said, "The Attorney General chose to limit his
own authority by promulgating the Watergate Special Prosecutor
regulation. It is settled beyond dispute that under such circum-
stances, an agency regulation has the force and effect of law and is
binding upon the body that issues it. The Supreme Court," said the
court, "has twice held that an executive department may not dis-
charge one of its own officers in a manner inconsistent with its
own regulation concerning such discharge."
Now, you say that they were wrong?
Judge BORK. May I discuss that case, Senator?
Senator METZENBAUM. Please do.
Judge BORK. In the first place, it should be noted that the only
reason the amendment to the regulation did not issue immediately
was it was a Saturday night, Monday was a holiday, Columbus
Day, and we could not get it published in the Federal Register.
But in the second place, it should be saidby the way, Mr. Cox
did not join in that lawsuit and did not seek back pay or to be rein-
stated. The cases relied upon in Judge Gesell's opinion are all cases
in which a department head issued a regulation and then himself
did something in contradiction to it. I thought, and still think, that
those cases do not apply to a case where a department head issues
a regulation and the President orders himthe President gives an
order to abolish that regulation, which is, in effect, what happened.
195
No case cited by the court in that decision involves anything like
that.
I should also say that I appealed that case, and the moment I ap-
pealed it, the plaintiffs rushed in and said the case is moot; that is,
there is no longer a live controversy. I replied that the case was
moot, there was no live controversy when you filed it.
However, the Court of Appeals for the District of Columbia Cir-
cuit agreed that the case was no longer a live controversy and sent
it back to the district court with instructions to vacate the opinion
and decision. Of course, as we know, the instructions to vacate
mean that the case no longer exists, in effect; the opinion no longer
exists, in effect. Judge Gesell did vacate his decision and opinion.
Senator METZENBAUM. It was sent back to be vacated because
there was a new counsel at that point; therefore, the office was no
longer vacant. So the issue was moot. But the thing that concerns
me, Judge Bork, and I think probably concerns millions of Ameri-
cans, is that you are up for confirmation to be a member of the
highest court of the land; a court determined that your action was
illegal; you disagree with that position. But I wonder whether or
not every American may not say, "Well, I can commit an illegal
act also and it is not so bad because a member of the Supreme
Court of the United States committed an illegal act and he dis-
agreed with it, and I disagree with the act that convicted me," or
whatever, in connection with some particular matter in which an
individual is involved.
It is the message. Can an individual say, "I disagree with a
court's decision," and that be the end of it? And I am aware of the
fact that you
Judge BORK. That is not the end of it, Senator. I tried to appeal
it.
Senator METZENBAUM. I understand.
Judge BORK. And I did not get a chance to have that ruling
tested on appeal because there was no longer a live controversy. So
I never got to run through it, and I resisted dismissing that case in
the court of appeals. I wanted to get to the issues.
I think that night all of us assumed that, as far as I know, Attor-
ney General Richardson and Deputy Attorney General Ruckels-
haus assumed that the regulation did not stand in the way of a
presidential order. Furthermore, I should note that Mr. Cox him-
self referred to the delay in putting out a new regulation changing
the charter, abolishing the charter, as a technical defect. At most,
it was a technical defect. I do not even think it was that.
Senator METZENBAUM. YOU are telling us this morning that you
could not change the regulation on Friday because you could not
get it into the Federal Register.
Judge BORK. I could not publish it.
Senator METZENBAUM. But the facts are that whether you had
done it on Friday or on Monday, the court still would have deter-
mined, apparently, that it was a ruse, and that it was just a way of
getting around the regulation because you reinstated the same reg-
ulation, exactly the same regulation, 3 weeks later. So there is no
reason to believe that the court would have come to any contrary
conclusion.
196
Judge BORK. Oh, I think there is, Senator. I do not think there
was any evidence before that court of a ruse. I did not discuss this
with the President at all. We did not contemplate a new special
prosecutor. We contemplated that the investigations would be run
effectively by Messrs. Henry Ruth and Philip Lacovara in their old
building with the same staff in the same way. There was no con-
templation of a new special prosecutor until it became clear that
the public wanted one.
Senator METZENBAUM. Was there ever any doubt in your mind
that the people of this country expected the special prosecutor to
go forward and obtain the facts with respect to the matter of Wa-
tergate? Was there ever any doubt in your mind that that
Judge BORK. NO, there was never any doubt in my mind that the
people of the country wanted the investigations to go forward and
prosecutions to result, if justified, and there was never any doubt
in my mind that that is exactly what I wanted. In fact, I did my
utmost to keep that Special Prosecution Force intact and going for-
ward.
Senator, we can get into the details later, but I think it is impor-
tantand I think this is really what the matter is about. This is
the final official report of the Watergate Special Prosecution Force,
not written by me, written by the men and women in the Special
Prosecution Force. They say on Page 11, "The Saturday Night Mas-
sacre did not halt the work of the Watergate Special Prosecution
Force, and the prosecutors resumed their grand jury sessions as
scheduled the following Tuesday. Bork placed Assistant Attorney
General Henry Peterson, head of the Criminal Division, in charge
of the investigations WSPF had been conducting." And here is a
crucial sentence. "Both men assured the staff that its work would
continue with the cooperation of the Justice Department and with-
out interference from the White House."
That is exactly what happened.
Senator METZENBAUM. YOU consistently took the position, did
you, that the tapes should be made available, that the President
should cooperate, and that the special prosecutor's responsibility
should go on?
Judge BORK. I took the position that the special prosecutor's
people, all of whom remained in place and in their own building,
should go on. I never took the position that the President had to
hand over evidence if he thought he had a legal right not to. I took
the position that the Special Prosecution Force had a right to go to
court to compel him to hand over evidence, and, indeed, they did.
Senator METZENBAUM. Let me ask you some questions about
that. On October 24, 1973, 4 days after you fired Archibald Cox,
you had a press conference on the Watergate matter. You said,
"Until late last Saturday afternoon, I was not involved in these
matters at all. I had upon two or three occasions, I suppose, dis-
cussed jurisdictional problems concerning the Special Prosecution
Force with Elliot Richardson and upon occasion, perhaps two occa-
sions, with Archibald Cox and some of his staff. But I did not know
the details of what the jurisdictions were."
The White House has also stressed that you were not involved in
the Watergate matter prior to your firing Mr. Cox. The White
House submission on your nomination states, "Prior to Saturday
197
evening, Bork had only been tangentially involved in giving advice
to Elliot Richardson on the jurisdiction of the special prosecutor."
In fact, Judge Bork, a review of the record shows that you were
involved in giving advice to the White House on the issue of execu-
tive privilege. I want to ask you about some documents, which at
this point, Mr. Chairman, I ask be included in the record. Under
your rules, we will make them available during the next break.
Judge BORK. Well, I wonder, if I am going to be questioned about
documents, Senator, whether I may not see the documents now.
Senator METZENBAUM. Surely.
The CHAIRMAN. I think that is appropriate. We will get you that.
Senator Thurmond whispered something in my ear. Would you
repeat what you said, Senator?
Senator METZENBAUM. I said that under your rules, as I under-
stand it, if special material is to be made available, you have asked
us not to do it during the hearing, but to wait for the recess. I cer-
tainly intend to make them available to Judge BORK.
The CHAIRMAN. Correct, yes, just not to the press because I do
not want to get into the business of passing out documents at this
point. You can do that at the recess. But Judge Bork, as you have
just given him, should have the documents in front of him from
which he will be questioned.
Does he have the relevant documents now?
Senator METZENBAUM. He does, indeed.
[Material follows:]
198
August 2, 1973
MEMORANDUM FOR THE PRESIDENT
FROM: ALEXANDER M. HAIG, JR.
Attached is a copy of a letter from Charles L. Black, J r . ,

the Luce Professor of Jurisprudence at Yale University, outlining
his views on the matter of executive privilege on tapes and
documents. It is strongly supportive of your position and is
especially significant in view of Black's normally liberal stance
on most issues. It Is also significant that Bob Bork has
reversed his originally skeptical attitude on our position.
199
Oliitt of the Solicitor General

, 33-C 20530
July 31, 1973
Dear General Haig:
The enclosed letter to the NewYork Times

makes so persuasive an argument for absolute presi-
dantial privilege that I thought you ought to see
it. It has helped change my prediction on the
probable outcome of litigation on the subject.
The vritcr, Charles Black, is a good friend of
mine and a very distinguished lav/ professor at -
Yale. Interestingly enough, he is a man of very
liberal persuasion.
Professor Black asks that this letter be

held in confidence until it appears in the Times,
probably this v.-eek as an article on the Op-Ed- page.
Sincerely,
200
J u l y 25, 1973
The Editor
The Mew York Tiires
229 VJest 43rd S t r e e t
New Ycrk, Mew York 10036
Dear S i r :
I consider it my duty to put en ths public record ny decided convlcticn
that f'r. Nixcn is daad rijht in refusing ccrrpliar.ee with subpoenas, whether
issued by a ccmrittee of the Senate, by a grand jury, or by any ocher author-
ity, ccrrandng the production c? written or taped records of consultations
held by hin as President. I thiric thi3 refusal Is not enly hi3 lawful priv-
ilege but his duty as i^'ell, for it is a measure necessary to the "protection
of the proper conduct of his office, not only by him but, ;njch more impor-
tantly, by his successors for all tirs to core.
Since there are no precedents, Judicial or otherwise, covering this
case, and since the Constitution does not expressly speak to the issue,
v.e nist have recourse to ca-n-.cn sense, which ousiit to underly and inform
ccnsidsratlcn of every constitutional question. It is hard for ns to see
how cny person of conrxn sense could think that those consultative end
declsicnal processes that are the essence of the Presidency could be
carried en to any gocd effect, if every participant spoke or wrote in
continual awareness that at any moment any congressional cenrdttee, or
any prosecutor working; vdth a grand jury, could at will comrand the
production of the verbatin record of every word written or spoken. Doe3
anybody really think that Franklin Roosevelt, or Lincoln, could have-
iranaKed the Presidency on those terra? That the neans by which Lyndon *
Johnson secured the cloture vote en the Civil Right3 Act of 195^ vwuld
nave been usable, under those conditions? - "
1 *
Îhe Eracers of our Constitution, as one of their first acts,

unsnirously resolved that all their proceedings should be inviolably
secret, and that the Convention should In the end go before "the public
with a result, rather than with a record of the tortuous process by
which that result was reached. The Suprerae Court confers in the
strictest secrecy, never violated, and is judsed by its public decisions
and its publicly uttered reasons. These facts should be pondered, Just
for a little roonsnt, by those who would lave with the perfuse of sanctity
the public's so-called "ri?it to know"1.
201
TACTi 2
Ihe Editor, Ihs ::er.i York TITOS July 23, 1973
I t i s true that the Constitution dcas not expressly set.up an

"executive privil:>rs''. I doubt i t ever occurred to the Frarrsrs that
anyone would cere to contend that the Fresldent had r.6 ri<-ht t o take
effectively pri'/ate counsel, or to hold private conversations. In
my cose, his rirc.t to that privacy re3fc3 enly on functional lr.pll-
caticn; he cannot efficaciously conduct his oiTice without i t . But
i t i c equally true that the Constitution dce3 not expressly confer
any Investigative pever, or power of subpesna, on Congress or on i t s
ccr^rrLttees, t h i s power, too, r e s t s en Lcplicaticn, or at best en the
Jud^r-er.t tnac investiâcicn i s "'necessary and proper"' to the exercise
of the te;<tually narsd congressional powers. But i s there anyone so
far prjz in l i t o r a l i s n as to hold that the President dees not also
possess those in-Tiaoities 'necessary and proper'1 to the effective
exercise-of the Presidency, even though these very words do not
occur in the Constitution?
IVo subsidiary but practically L^portant points rust be added.
F.lr3t, ths decision tl-:at the President's records nay be subpoenaed
and forcibly publicized \;o-old certainly ranerate i t s cv.n abuses, for
ths surest hi>i read to wide publicity, i'or any Ccn^resspan or Senator
ccncrolliny the subecena pev/er, v/culd ca to use i t on the President.
Secondly, a l l attarpts to frustrace secrecy in serious ilecisicn^JL
processes rrust f a i l , and will alrost always do r.'cre harm t:>an ccd,
for ti:e secrecy, being necessary, '..111 s'jrely continue sub rosa,
v/ithcut even the responsibility irpesad by a permanent record and
by relatively forraliêd procedures.
I t i s the ulticata constitutiaial foolishness to l e t the r s r i t s

of a particular case rush the country into a disastrous precedent.
1
t.s have to think not enly of . Iii;icn and Senator Ervin, but of
President Eisenhower and Joe KcCarthy, end of every possible future
corbinaticn. Lot uc jud.32 Tr. .'ixen en his public record, ar.d not
ccn\-ert cur jud-cênt of that record Into a precedent that will
eraarass and degrade the Presidency for the whole future.
*
Sincersly yours,
Charles L. Dlack, Jr.

Luce Professor of Jurisprudence
202
EXECUTIVE
THE WHITE HOUSE

WAS HINGTON
August 3, 1973
MEMORANDUM TO: AL HAIG
PAT BUCHANAN
FROM:
Maybe this guy could help us out
Pat
\K\V YORK TIML'S - .S
Mr. Nixon, the Tapes, and Common Sense

efffct, it every participant spoke or It is true that the Constitution does publicized would certainly generate its
By Charles L. Black Jr. wrote in continual awareness that at not' expressly set up an "executive own abuses, for the surest high road
any moment any Congressional com- privilege." I doubt it ever occurred to to wide publicity, for any Congress-
mittee, or any prosecutor working with the framers that anyone would come man or Senator controlling the sub-
NEW HAVEN Mr. Nixon Is dead a grand jury, could at will command to contend that the President had no poena power, would ht tn m e it oa the
right in refusing compliance with sub- the production of the verbatim record right to take effectively private coun- President. Secondly, all attempts pots to
poenas, whether issued by a commit- of every word written or spoken. Does sel, or to hold private conversations. frustrate secrecy in serious decision. I
tee of the Senate, by a grand jury, or anybody really think that Franklin In any case, his right to that privacy processes must fail, and will almost
by any other authority, commanding Roosevelt, or Lincoln, could have nun- rests only on functional Implication; always do more harm th^n. gih** "^"f
the production of written or taped rec- aged the Presidency on those terms?j ha cannot efficaciously conduct his of- the secrecy, being necessary, will sure-
ord! of consultations held by him as That the means by which Lyndon John-1 fice without it. But It Is equally true ly-coriHMli SIB talk, without even the
President. I think this refusal Is not son secured the doture vote on the that the Constitution does not express- responsibility imposed by t " to
only his lawful privilege but his duty Civil Rights Act of 1964 would have ly confer any investigative power, or
as well, for it is a measure necessary nent recoro and by relatively
n usable, under those conditions? ] power of subpoena, on Congress or on
to the protection of the proper con* Bed pTMcdurer
The framefs of our Constitution, as its committees; this power, too, rests
duct of his office, not only by him but, one of their first acts, unanimously re- I t u the ultimate constitutional fool-
on implication, or at best on the judg-
much more importantly, by his succes- solved that all their proceedings should ishness to let the merits of a particu-
ment that investigation i* "necessary
sors for all time to come. lar case rush the country Into dis-
be inviolably secret, and that the Con- and proper" to the exercise of the tex-
astrous precedent We have to think
Since there are no precedents, judi- vention should in the end go before tually named Congressional powers.
not only of Mr. Nixon and Senator
cuf or otherwise, covering this case, the public with a result, rather than But Is there anyone so far fone in lit-
Ervin, but of President Eisenhower and
and since the Constitution does not ex- with a record of the tortuous process ( eralism as to hold that the President
Joe McCarthy, and of every possible
pressly speak to the issue, we must by which that result was reached. The ' dOel B6t also possess tnose immunities
future combination. Let us judge Mr.
have recourse to common sense, which Supreme Court confers in the- strictest "necessary and proper" to the effec-
Nixon on his public record, and not
ought to underly and inform considera- secrecy, never violated, and Is judged tive exercise of the Presidency, j v e n
convert our judgment of that record
tion of even- constitutional question. by its public decisions and its publicly though thoifj very worrit lift mH frmr
into a precedent that will embarrass
It is hard for me to see how any per- uttered reasons. These facts should be in the Constitution?
and degrade the Presidency I V l&e
son of common sense couJd think that pondered, just for a little moment, by , Two subsidiary but practlcaJJy Im-
whole future.
those consultative and decisions! proc- those who would lave with the per- portant point* must be added. First,
esses that are the essence of the Presi- fume of sanctity the public's so-called the decision that the President's rec-
ords may be subpoenaed and forcibly Charles I. Black Jr. it Luet Pnftttor
dency could be carried on to any good "right to know." of Jurisprudent at Yale.
204
THE PRE3IDaT 11AS SEEN

MEMORANDUM
THE WHITE HOUSE

WASHINGTON
August 8, 1973
MEMORANDUM FOR: THE PRESIDENT
FROM: ALHAIG
SUBJECT: Another Letter from Professor

Charles Black
^BoWBork has sent m e a copy of another letter written by

Professor Charles L.*Black, J r . , which Congressman Bob
Êckhardt has had inserted in the Congressional Record. 1
believe you will find it of interest.
Attachment
205
E 5320 CONGRESSIONAL RECORD - Extensions of Remarks August 1, 1973
* * * * *
Obtaining The White House Tapes
HON. BOB ECKHARDT

of Texas
in the House of Representatives
Wednesday, August 1, 1973
MR. ECKHARDT. Mr. Speaker, in recent days there has been
considerable debate over the constitutional problems and
ramifications of the attempt by the Senate Select Committee
on Presidential Campaign Activities to obtain tapes from
Mr. Nixon. Following is a letter I received from Prof.
Charles L. Black, Jr., a noted constitutional scholar on
the Yale Law School faculty, commenting on the situation. I
think my colleagues will find Professor Black's comments
extremely interesting and useful.
Prof. Blacks comments follow:

YALE LAW SCHOOL
New Haven, Conn., July 30, 1973
HON. BOB ECKHARDT,
House of Representatives
Washington, D.C.
MY DEAR CONGRESSMAN ECKHARDT:
I want to communicate to you some of my thoughts on the
deadlock now developing with respect to the President's
amenability to the subpoena duces tecum served on him by
Senator Ervin's Select Committee of the Senate.
I think I ought to say, first, what an enormous peril I
see in what is going on without anyone's really wanting it to
happen, we are in danger of degrading or even destroying the
Presidency as we have known it. You know, from our many past
conversations and from some public writings of mine, that I
think the aggrandizement of the Presidency has in some respects
gone too far, and that some of the mystique surrounding the
office ought to be dissolved. But it would be extremely
86-974 0 - 8 9 - 9
206
foolish for us to go too far in the other direction, for the

Presidency is the one wholly national elective office we have,
and the degradation of that office even of its symbolism,
wherein lies a great deal of its demonstrated power for good
would be a most unfortunate development, disturbing in the most
dangerous way the balance of the best government yet devised
on earth. We should be especially careful not to do this
through dislike or disapproval of any incumbent. Presidents
come and go; any incumbent's powers can be checked in the
desired degree by Congress. The office must be valued and
protected above all for what it can be in the hands of a
Franklin Roosevelt laying the foundations of modern social
justice, of a Harry Truman establishing civilian control of
the military, of a Lyndon Johnson putting through the Civil
Rights Act of 1964. It is against this background of fear for
the indispensable dignity of this office that I make my technical
points.
I think, first and most crucially, that the activation of

this Select Committee of the Senate was wrong constitutionally
wrong. I heard Senator Ervin say, on a broadcast on Sunday
morning, July 29, 1973, that at least one of the principal
aims of his Committee was the finding of facts regarding Presi-
dential involvement in the Watergate affair and its cover-up.
But even if he had not said that, or even if I perchance misheard
him, it is perfectly plain that at least one of the missions of
the Committee is the ascertainment of these facts.
Now this sounds innocuous enough, until one reads the

Constitution. When one does that, one finds that the sole power
of impeachment is in the House of Representatives, and, far more
importantly, that if that House votes impeachment, the Senate
including all the members of this Select Committee, will have
to sit as a judicial body, presided over by the Chief Justice,
with the responsibility of finding the President guilty or not guilty
of the charges brought. How in the world can these Senators sit
as judges, or jurors, or a little of both, in a case with which
they have been so closely engaged? Any judge thus involved in
the background of a criminal matter coming before him would
unhesitatingly recuse himself. Any juror with the same back-
ground of involvement would automatically be excused for cause.
What this Committee has done and is doing (and I speak

here with great respect,, for I impute no improper motive or
wrongful intent to these Senators) is so to act as to disqualify
a part of the Senate from performing in the event of its
Constitutional duty an impeachment's being voted by the
House of Representatives. Indeed, it may be questioned
whether the whole Senate is not to some extent disqualified,
for this Committee is the agent of the Senate, empowered
by that body and reporting to that body. With the
207
deepest respect, I must say that what the whole Senate, each
of its members, and all of its committees ought to have done
was to abstain most scrupulously from any involvement in a
matter which, as possible judges-to-be, they might later have
to pronounce upon judicially. It cannot be constitutionally
right for any Senators so to act as to disable themselves from
the totally uncommitted performance of their judicial duty in
case of impeachment.
Now I do not for a moment think that any court ought to

try to stop this investigation. But when a court is appealed
to for aid in the carrying on of the work of the Committee,
whether by way of enforcement of its subpoenas, or of issuance
of a declaratory judgment, that court is, I submit, duty bound
to consider whether the Committee has constitutional warrant
for its proceedings, or whether, on the other hand, its creation,
empowerment and actions are profoundly unconstitutional, for
the reasons I have given. If the latter judgment is correct,
then of course no court ought to assist.
I must repeat that although I have spoken plainly, for

the occasion is one for plain speaking, I utterly disclaim any
imputation of wrongful intent on the part of any of the mem-
bers of the Committee. I think only that they, and the Senate,
have made a great mistake, and that no court ought to allow
that mistake to spread to the judicial branch.
My next point would be that, although this subpoena situa-

tion has been treated as a "confrontation" between Congress and
the President, it is by no means that. Directly and literally,
it is a "confrontation" between the President and a Select
Committee of the Senate. Congress has in no way whether in-
formally by concurrent resolution or in the formal manner man-
dated by the Constitution committed itself to this "confronta-
tion". The question, then, is not whether Congress might, by
clear and specific indication of its will, have access to
Presidential documents; I think, as I shall later make clear,
that there ought to be wide limits even on that power, but
that is not the present' question. At the very most, this is
a "confrontation" between the President and the Senate.
208
But I doubt that even that is an accurate character-

ization. The very Resolution (S. Res. 60, 93rd Congress, 1st
Session) establishing this Select Committee does confer a
general subpoena power, and the words used might literally, if
fed into a computer, cover the President, though, as 2 will
soon show, even that is doubtful. But I submit that a court
ought to adopt it as a rule of construction aimed at the
avoidance where possible of this highly undesirable confron-
tation, and at the protection of the judiciary from unnecessary
involvement that, if this most crucial and sensitive crisis
is to arise in court, the President must be named, so that the
court may be sure that this undesirable situation is one to
which the legislative authority has consciously committed it-
self. This rule of construction seems to me psychologically
sound; who, in regarding general language about the subpoena
power, and voting its adoption, thinks of the President, and
of this ultimate confrontation?
I doubt, however, that the language of S. Res. 60 covers

the President at all, even by generality. The subpoena duces
tecum authorization reads as follows:
"(5) to require by subpoena or order any department,
agency, officer, or employee of the executive branch of the
United States Government, or any private person, firm, or
corporation, or any officer or former officer or employee of
any political committee or organization to produce for its
consideration or for use as evidence in its investigation and
study any books, checks, canceled checks, correspondence,
communications, document, papers, physical evidence, records,
recordings, tapes, or materials relating to any matters or
questions it is authorized to investigate and study which they
or any of them may have in their custody or under their control."
Perhaps a lexicographically programmed computer might

print out the judgment that the President is an "officer" or
"employee" of the executive branch. But that is not the way
we construe statutes. Is it not perfectly plain that such
language is entirely inapt, as a matter of usage, to designate
the President of the United States? If I am right here, then
even the Senate is not in "confrontation" with the President, not
having authorized his being subpoenaed.
S. Res. 60, moreover, contains the usual provision for
report back to the Senate:
"(6) to make to the Senate any recommendations it deems
appropriate in respect to the willful failure or refusal of any
person to appear before it in obedience to a subpoena or order,
or in respect to the willful questions or refusal of any person
to answer questions or give testimony in his character as a
witness during his appearance before it, or in respect to the
willful failure or refusal of any officer or employee of the
executive branch of the United States Government or any person,
209
firm, or corporation, or any officer or former officer or

employee of any political committee or organization to pro-
duce before the committee any books, checks, canceled checks,
correspondence, communications, document, financial records,
papers, physical evidence, records, recordings, tapes, or
materials in obedience to any subpoena or order;"
Does not this language (at the very least when applied
to such an utterly unique and politically charged question as
a "willful failure or refusal" of the President himself) desig-
nate the exclusive procedure to be followed by the Committee:?
Is it not reasonable to infer from it a direction by the Senate
that the matter of possible contempt be brought back to the
whole Senate, for resolution upon action? Is the expressed
power to "make recommendations" not an implied exclusion of
independent action by the Committee?
Of course, even if authorized by the Senate, any court

action would have to fall within the judicial jurisdiction.
I understand from published reports (and it is implied in the
Committee's own resolution" that reliance may be placed on the
Declaratory Judgment Act, passed some forty years ago. The
operative part of that Act now reads:
"In a case of actual controversy within its jurisdiction,'

except with respect to Federal taxes, any court of the United
States, upon the filing of an appropriate pleading, may declare
the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or
could be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable
as such."
I cannot think of a clearer instance than this of the
mechanical application of general language to a unique and
unforeseen situation quite obviously not within the contempla-
tion of those who put the general language in place. Here
again, it seems to me not only reasonable but wise for a court
to require that, if Congress wishes to create the mechanism for
inter-branch confrontation, it do so expressly and clearly.
Many more technical issues could be explored. These issues,

though technical, are important, for correct procedure is re-
quisite above all with respect to great constitution crises.
But I will pass on to the main question on the merits, that of
the "inherent" Presidential right of privacy.
"Inherent" is a frightening word. All it ought to suggest
in this context is the question, "What does it take for the
President to perform his sensitive duties with the highest
effectiveness and in an air of dignity?" It seems to me quite
clear that the Presidency could not be carried on, with dignity
or with efficacy, if the President himself and every participant
in consultations and discussions with him had to fear the
forcible verbatim disclosure, under subpoena issued by any grand
210
jury, or any court, of the tenor and content of such consulta-

tion. Call to mind some of our former Presidents. How would
Lincoln have operated under this regime? Try to imagine what
Franklin Roosevelt (or his cousin Theodore) would have thought
of it. How would we have liked for Senator Joseph McCarthy to
have the power to subpoena every record of every discussion
held by President Eisenhower on the subject of subversion in
government?
What is really happening is that an absolutely unworkable
rule threatens to be put in place, simply because there is great
dislike and suspicion of the present incumbent.
It is apparently the theory of the Committee that the
President ought to be just as amenable to subpoenaing of his
records as any mortal, so long as those records are relevant
to some congressional, prosecutorial or judicial concern. I
should think anyone could see, first, that such a rule would
generate its own abuses, for any official controlling the sub-
poena power (and there are very many who do) would know that the
surest way to conspicuousness would be to turn that power on
the President. On what theory would we exclude state prosecutors,
grand juries and legislative committees? I cannot think it would
be possible for the President to take or receive frank counsel on
these terms, and without utterly frank counsel any such great
officer is lost.
In some recent comments by academic experts, it is tacitly

conceded that executive privilege must exist in some large
degree, but the present case is sought to be distinguished.
Little mousetraps of "waiver" are sprung; concessions perhaps
unwisely made under pressure of time and emotion, are seized
upon as just exactly what it happens sprung; concessions,
perhaps unwisely made under pressure of time and emotion, are
seized upon as just exactly what it happens to take to make this
case different. These comments have the flavor, to me, of
highly special pleading. Their interest lies largely in their
implied concession of the quite visible necessity of confiden-
tialty in much of the President's consultation. Their attempts
at distinction, to me, fail. It can hardly be that the solid
grounds for presidential confidentiality are so easily, almost
accidentally, to be undermined, presidential confidentiality,
to be effective or even to exist, must be wide, and must be
very largely at the discretion of the President, for to force
him to submit to any other tribunal the issue of the propriety
of protecting any particular communication is to destroy, by
that requirement itself, the very confidentiality at issue.
The remedy for abuse (like the remedy for abuse of the pardon
power, the veto power, or any other presidential power) is to
elect good Presidents^!
211
Indeed, I cannot see why we should be unwilling to cover

the Presidency with the same confidentiality as that with
which the Framers of the Constitution covered their delibera-
tions. They saw clearly that nothing but ill could come of
their consulting under constant threat of disclosure of every
word tentatively uttered. They wanted to go to the country with
a result and not with a record of the to-and-fro movement
toward that result, of all the foolish things said and retracted.
Similarly, the Supreme Court (like all our plural-member courts)
consults in secrecy, and presents the public with a result and
with finally agreed-upon reasons. There is absolutely nothing
that jars with the spirit of our institutions in our judging
the President on the record of things visibly done and of words
spoken in public. That is enough for judgment, as it always
has been, and to insist on more is to seek to strip the office
of dignity and of the support of truly candid consultation. I
have no doubt that that is what some now want, but if they get
it I think we all shall at last be sorry.
For the foregoing reasons, I think President Nixon is right
in resisting the Committee's subpoena, and I hope his position
will be upheld by the courts.
Very sincerely,
Charles L. Black, Jr.

Luce Professor of Jurisprudence
# # # # #
212
(Office of tfje Solicitor General

Warijington. .C. 20530
August 3, 1973
General Alexander M. Haig, Jr.

The White House
Washington, D.C.
Dear General,
I enclose more of the thoughts ^pf Charges

Black because I think you will find these
ideas quite interesting.
This letter, introduced in the Congr*

Record by Congressman Eckhardt, covers additi
points that did not appear in Professor Black
to the New York Times. I should note that Corf
Eckhardt introduced this letter as an ace
to a friend and not as expressive of his
I am sending copies of this to Leonard

Garment, Fred Buzhardt, and Charles Wright
Sincerely,
Robert H. Bork
Solicitor General
213
E 5320 CONGRESSIONAL RICORD Extensions of Remarks August 1, 197J

workers ftcre a standard, then getting off More sf rious doubts, however, are be- prepared to accept a deficit which last Janu-
vitftM completely would not really Im- Cinnlng to arise. Bruce Davidson wrote r u estimated would be about e n billion
prove" 11!= for the so-called welfare poor.
B M U H , a surprising number of them are an article lor the July 30 Boston Globe, l^."? n " T - i ^ X n ? %%?
working per cent of the mat* welfare Phase IV May Cut Job*. Not Prices." fS?*1 " T e o u e > - *
recipient* studied had worked more than 60 which pointed out the distinct possibU- B l n 0 . ,. Administration has to far ruled
per eent of the time covered by the study lty that phase TV may not only fall to out tax increase, th* decision io eliminate
M agelnet only 90 per cent of mat* non- stem Inflation, but may also mean a sic- even th* 3 bulion deficit means cuts in red -
nelplenU Among women, a majority of both nlflcant Increase In unemployment, and eral spending unless then are unexpected
recipients and nonreclpleots had worked at
least half the time. Moreover, the Jobs held a serious recession. That Is a result we additional Increase* in revenue within the
by low-wage workers were mostly full time
but so poorly paid and dead-end as to lean
th* workers still In poverty, often crnilng
less than tn* "combined value of sintlces
and cash from welfare ** of my colleagues: The S3 billion may In Itself n a n small
Th* Pe.-msn-MUIer study lsotaUd a set of Psusc IV MAT Ctrr Joss, MOT Paiccs and Is In relation to a total budget of 28
characteristics that tend to keep too many billion and a gross national product of nearly
President Nixon*, snnouocement of Phase S1J
Americans In poverty, whether of the arork- buuoo. But th* Administration ha.
4 price and wag* controls has already been often stressed Its belief that even small
lng or welfare varietyrural origins with
poor educational opportunity: migration to
the city or elsewhere: lack of skills and
training. These problems are compounded
for racial minorities and for women. Tor
thes* people good Jobs are usually not avail-
able, no matter how much they want to perHIng restraint
work: for tbem. too. welfare can be of sub- As troublesome as Inflation hss been and comes at Just
stantial assistance, and many take advan- probably wtu be. It may not bs th* worst already b* cooling
tage of It without losing their desire to work evu facing c
sud rise. telegraphed budgetary surpli ilng at a rate of
Th* study notes a substantial difference In markedly si
th* problems of mal* and femal* welfare quarter of this yesr. Is that w* sr* possibly
recipients. Contrary to stereotype, th* wom- on th* verge of a new bout with unemploy- This will not necessarily produc* a no-
en do not have larg* numbers of children, ment. Administration policy, abetted by a growth situation much lass a decline tn over-
but they do tend to be th* only workers In perplexed Congress, threatens to foster job- all output but th* sconomy must expand
lessness without .urrturtlng In Its other pur- rapidly enough to absorb nsw entrants to the
their families and they work for the lowest Job market. The addition of more than 2
of wages*The men. on the other hand, usu- pose of curbing pne* Increases.
ally make much better wages and sometimes We may low twice rather than Just ones
are helped by a working wife or older child, Inflation and a stagnant economystagna-
but have such large families that they can- tion for snort. working or seeking work.
not adequately support them In that situa- The Commerce Department figures show The Administration hss shown some ca-
tion. Increased earnings for a female recipi- that the nation's total production of goods pacity lor flexibility In It* various attempts
ent Is a possible solution: but It Is not a and service roe* during ths second quarter at to manage th* economy but th* current rig
likely ulutlon for th* roal* recipient, who an annual rate of 2.6 percent compared with in attempting to Impose the absolute re-
probably needs*_> Mr. Ferman and Mr. Mil- 6 7 percent for the first quarter of the year. straint on spending looks to us Ilk* on* that
lar arguea family allowance plan. There has been com* propensity to cheer v. Ul see us all back In the tough. Job of maxi-
mizing employment. Treasury Secretary
They conclud* that In any senslbl* ap- ths decline, which was partially
proach to the poverty problem. "Tb* cm- pected by economists around th* country. Georx* Shults has called th* balanced budget
-old-time religion.** appealing to someone's
phiuls should not be on welfare recipient These cheers were based on th* reasonable sens* of nostalgia. To us It sounds like old-
versus nor.reclplent meaningless catrgorl' opinion that the very fast rate of growth In time unemployment, and that don't need
but rather on male workers versus female the first quarter was unsustainable without
workers Second, th* emphasis should b* eten rone Inflation than we had been ex-
shifted from th* concept of a welfare prob- periencing and that It would be far better to I
lem to that of a labor market problem ~ drop back toward th* percent rate widely /
Obviously. If far nor* women than men
seen as possible without unacceptable price OBTAININO THE WHITi: HOUSE
rise* Furthermore. Mm* work don* by Carol TAPES
are In th* poverty class, whether welfare or Oreenwald. sn economut with th* Federal
uorklu;. any etfectlv* program will have to Reserv* Bank of Boston, suggests that our
"result, in well-paying, prestigious careers for sense of the direction In which th* economy HON. BOB ECKHARDT
wom.n as well aa men." Just as obviously. If is headed may be Influenced by faulty algns.
there are no real dlflemncea between th*
uorktnjf and th* welfare poor, the problem She targets t h . Commerce Department's IN THE HOUSE OF
Is not to get some people off welfare* but to Index of leading Indicators, widely used by
get%ar more people out of an economic dead economists as a tool (or evaluating tb* na- wcaneiaay. August 1,
end Mr. Ferman and Mr. Miller favor "re- tion*, near-term prospects, charging that over T Mr
structuring th* lov/-wag* market." through
unionization: surely their study also points
straight to the need for an Income assistance cent rise In that Index reflects Inflation.- ,2 .. -... . . . . ,_
ami maintenance plan. SI- has constructed a new series Ilk. thTt ramifications
ttte
of the attempt b y t h e S e n -
used by the Commerce Department but sc- S*' 1 *' Committee on Presidential
counting for price Increases in such areas as Campaign Activities to obtain tapes from
industrial materials, corpo-ate profits, msnu- Mr. Nixon. Following Is a letter I re-
PHASE IV MAY COST YOU YOUR racturers' new orders, plant and equipment celved from Prof. Charles L. Black. Jr.. a
JOB contracts,adchanges In consumer
bo<
Installment noted constitutional scholar on the Yale
r w Sch0 l
"Si"' * '**"*" *" * "'" " """" * 'acuity. commenUac on the
situation. I think my colleagues will find
HON. MICHAEL HARRINGTON Professor Black's comments extremely
Interesting and useful.
peaked In Mayand argue that "The slow- Prof. Bltcks comment* follow:
IN THE nOtJSE OF REPRESENTATIVES ing rate or advasce In the deflated Index since
Wednesday, August 1, 1373 the fourth quarter of 1T2 presages a decline Ytx LAW SCHOOL.
In the Krowth rate of real GUP." Hew >*. Coxn, Julg it. my
Mr. HARRINGTON. Mr. Speaker, the Dt.t the Phase 4 message carries with It a linn Boa ECKIIABBT.
lccently announced phase IV economic rail for balancing th* Federal budget during HUM* O/ nrpresentf fees,
stabilization program has already run the current fiscal year, which started July 1. U'sl'if/teloft. 0 C.
Into i<1espread criticism and considera- Inc budget. hlch th* Administration and Mr DCA. coKcaxssUAM EocwasT: I want
ble popular doubts as to whether It will Conjrew have agreed should not be larger tunicate to y
you some of myy thoughts
thought
succeed or fall. In fact, some aspects of than 926a-bllllon. U th* amount that would on the deadlock now developing with respec
be lin.tnced by our existing tax structure to the President's amenability to the s b
the policy may already be foundering, with normal growth and an economy func- poena duces tecum served on him by Srn.i b-
riiwci.illy as the White House itself finds tioning at "lull employment.** Sluce e Err n's Select Committee of Ul* Senate
that it cannot purchase high quality economy h.vt been operating at less than fu:ll 1 I think I ought to say. first, what
.steak:, fur the President. cnv.o>mciit. the Administration had bee n leuc nous prr-.l I see In wbst Is goli\
214
E5322 CONGRESSIONAL RECORD Extensions of Remarks August 1, 1071

the power to subpoena every record or every [Y T E X A N 3 8 A I D NO TO THE stating It was cheaper to move lumber by
dissuasion beld by President Elsenhower on TRINITY RIVER CANAL ""L'ff^L*?1*^1"? " ? "nnlnaU than to
th* subject of subversion In government?
What U really happening U that an ab- nouses, with all the tranafers Involved.
solutely unworkabl* rule threatens to be put HON. HENRY S. REUSS Or. White and Mr. Pulcner. along with two
In place, simply because there U great dls- oth*r members of COST, accompanied fresh-
tet'tbaiTth* President ought to be Just ss Wednerta,. August 1. 1973

il. prosecutorlal or
Mr. REOSS. Mr. Speaker, the environ-
ment pace of the July 25. 1973. Christian 25? j2ZgL2Z.
Judicial concern. I should think anyone could Science Monitor Included an article en- Representing the other side at the May 23
t l U e d .-why Texan, Bald No To Trinity
see. first, that such a nils would generate Its
own abuses, for any official controlling the """""I? tZZ2?%EZotJt?m ccn
"
g: Three w ~ k ,
consptcuousiues would be to turn that power (By Otto Berkman> later the House Appropriations Commute*
on the President. On whst theory would we E , e n back In the IWOt. when legendary approved .1.3 bUllon for Oood control, bridge
exclude state prosecutors, grand Juries and
M Tof Bob Thornton Sr. goaded the growth construction, water >". | recreation
legislative committees? I cannot think It Of Dallas with his cry of-Keep tn* dirt nylnT on the river, while bypassing the eanalusa-
would be possible for the President to take t h e r e , . , . talk around Dallas and U o n o f t h . Trinity
or receive frank counsel on these terms, and F o r t worth that-someday" the muddy, me-
without utterly frank counsel any such .nderlng Trinity River would be cleaned up. of the adrotagjM of the program * ' -
uz*-*
the President's T U U o i W t e i n p t . the Trinity for the two-hundred mm stretch

at distinction, to me,. f.U. It can hardly be f r o n Fort Worth to the Oulf * Mleoat
d t o r ^ l - j n t u , con- O a ^ - ^ ^ j - ^ ^ - - ^
that tn* solid |grounds
fldentlaltty aresoeasUy. almost ace
to be undennlneoKesldeutlal con conndentlal- oBlclals. who were -for" the Trinity River Au-
lty, to be effective or even to exlst^ thorlty (TRA). and t h . n h x . U , -agin"
wide, and must be very Isrgely at the dlscre- taxpayers and envlronmentallsu.
''*m
xnent Itself, the very conndentlal It, at tonic, menl thst local money be put up on a 10-
bTnoTed -l^Snl?
"Vo 1 2 . the . . . . - w - ^ - - - -
any other a.ldenUal power) U to elect good Trinity River Development Committee asked
Pre-denuT
Indeed. nnnot see why we should be th* National 1
tit. Oeorpe
Framers of the Constitution covered tbelr .ter supply. nds between
deliberations. They saw clearly that nothing facilities, pollution abatement, thousands of both sides now. "If we have to disassociate
but IU could com* of their consulting under new Jobs, and 'low-coat water transporta- th* canal from other water resource projects
constant threat of disclosure of every word tion.' " I e. bargee on th* canaL we will work with th* opposition to salrs<e
tentatively uttered. They wanted to go to But the opposing Citizens for a Sound the generally accepted bemSts."
the country win a result and not with a Trinity Organization (COST), a coalition of Perhaps for tn* f utur* th* answer lies In a
record of the to-and-fro movement toward businessmen, private citizens, to* Sierra report Issued by tb* National Water Commis-
that result, of all the foolish things said and Club, and th* Audubon Society, w i n d on sion. That report amounted to a major over-
retracted. Similarly, the Supreme Court (like th* -low-cost water transportation." They haul of the nation's water policies and pro-
all our plural-member courts) consults In branded It as unnecessary, a "colossal boon- grsms. some causing controv*rslsl reaction
secrecy, and presents th* public with a re- doggle." a achem* of Trinity land-owning In essence, tt would put th* costs of flood
sult and with Anally agreed-unon reasons "fat cats" to cash In at th* people's expense protection and transportation facilities on
Then Is absolutely nothing that Jars with Working with a .ISjOOO ad budget, they sent th* users property owners, local and regional
the spirit of our Institutions In our Judging out the messag* that one-third of th* TRA governments, and commercial recreation
the President on the record of things vUlbly directors own or control 51.000 acres along users of a channel and Its locks.
done and of words spoken In public That Is
enough for Judgment, ss It always hss been, Tl-e bond Issue was defeated In 9 of the
and to Insist on most Is to seek to strip the IT counties by a 64 percent margin. KU ADAPTS FACILITIES TO HZLT
oner or dignity snd of the support of trulr One of the people who fought Uie hardest
CMidld coiuullatlon. I have no doubt that HANDICAPPED
that u what some now want, but If they r.et ttgabist the "fat cats" was COST chairman
It 1 think we sll shall at last be sorry Dr James While, a theologian from Southern
rlelhodlst University. He had become anry HON. LARRY WINN, JR.
Vor the foregoing reasons. I think Presl- with tue "pork barrel" aspects of the Trinity
df nt Klxon Is right In reslfctlilit the Com- Csnai while working on his last Income tax.
mittee's subpoena, and I hope his position Another anti-canal campaigner was a big IN THE HOUSE OP REPRESENTATU ES
III be upheld by the courts. businessmanCOST vice-chairman Henry C. Wednesday. August 1. 1973
Very sincerely, Fulclwr Jr. uhnie Sltco Lumber Company
O M i n L PUCK bhlps J5 00O tons annually. "Slow barging Mr. WINN. Mr. Speaker. I nould !i'-.p
Lint Pro/enor o/ Jurl<j Miiaci on a Trinity canal I* a myth." he said. to insert the following article from the
215
Office of tfje Solicitor General

n, B.. 20530
August 3, 1973
Hon. Leonard Garment

The White House
Washington, D.C.
Dear Len,
I enclose for your information a letter

written by Charles Black of the Yale Law School
faculty and placed into the Congressional Record
by Congressman Eckhardt. I should note that
Congressman Eckhardt introduced this letter as an
accommodation to a friend and not as expressive of
his own views. I think you will find it very
interesting, particularly since Charles Black is a
strong liberal and not a supporter of the President.
Sincerely,--
Robert H. Bork
Solicitor General
Assisting Archivist:
g.
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217
THE WHITE HOUSE

WASHINGTON
TELEPHONE MEMORANDUM
/aueaMt 3 , 19.H
- TIME
NAME ACTION
PLACED DISC
OUT 8:02 AM 8:0W Kajor Joha Branaaa TItd-ok
Dogwood 8:03 AM
Chap David Z-226
XJCK PM
OUT 10:06 AM 10:17 Mr. flneald Zlcgln* T2kd-ak
Vhlt* Bow* Offle* 10:06 AM
PM
Vhlt* Bow* Adala. X-706
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12:25 M
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XZMM
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218
Jhictico S
eOMMITTCC ON THC JUOICIMtY
SUKWMITTII OM
eniMinTiv MACTICC o mociomw
WASHINGTON, D.C. 20310
r November 16, 1973
Honorable Robert H. Bork _ f

Acting Attorney General SS
Department of Justice ***
Dear Mr. Bork:
I am sorry that I was unable to hear your testimony before the
Judiciary Committee on Wednesday, but I understand that you vere
most forthright and candid vith the Committee. So that your further
appearance before the Committee during this series of hearings can
be obviated, and as indicated by Senator Hart during your testimony,
I an submitting the following questions, the responses to which will
be included in the hearing record.
1. In your testimony before this Committee, you stated that

the President could limit the jurisdiction of the Special Prosecutor,
Mr. Jaworski, with a "consensus" of the Congressional leadership.
It appears that this aspect of the Special Prosecutor's new charter
vas understood by virtually no cnenot the media,!/ not the Judge
who decided the Cox dismissal case, and not, apparently, even the
Justice Department brief writers in that case, who limited the,
scope of the consensus provision to the question of dismissal.-2/
1/ Hew York Tines, November 2, 1972, at 22; Washington Post, November 2,

1973> at A3 ("Bork said that Jaworski will have the same charter Cox
did vith the additional commitment the President made regarding his
power to dismiss hie.").
2/ Nader v. Bork, Civ. No. 195ll-73, at 9, n. 13. ("The two regulations
are identical, except for a single addition to the new regulation which
provides that the Spacial Prosecutor nay r.ot even be discharged for
extraordinary improprieties unless the President determines that it is
the 'consensus' of certain specified congressional leaders that discharge
is appropriate.")
2/ Government's Brief in Opposition to Plaintiffs' Motion for
(con't)
219
Robert H. Eork
page 2
(a) Do you consider the wording of the new language clearly

to provide that the President msy interfere with the Special
Prosecutor's independencethat is, nay limit his jurisdiction
with a "consensus" of the congressional leadership?
(b) Does this language also allow for such limitation without
agreement by the Special Prosecutor?
(c) How do you account for the widely held public and congressional
belief that the consensus provision applies only to dismissal of the
Special Prosecutor, and not to limiting his independence or jurisdiction?
(d) Why was this added limitation included in the new charter?
(e) Under what circumstances do you foresee the President's

moving to limit the jurisdiction or independence of the Special
Prosecutor?
(f) Doesn't the existence" of this new provision seriously

undermine the independence of the Special Prosecutor and represent
a major retreat fros the jurisdictional freedom enjoyed by Mr. Cox
until he was fired?
2. Mr. Richardson suggested during his appearance before the

Judiciary Committee that the President should "sign on the dotted
line" his assurance that he will not use executive privilege to
refuse access to information by the Special Prosecutor.
(a) Aside fron his unqualified statement of October 26 that

"we will not provide presidential documents to a special prosecutor,"
has the President made any such definitive, public assurance?
(b) Do you agree as to the desirability that the President make

such a definitive, unqualified, public statement?
2/ (con't) Preliminary Injunction, Nader v. Bork at 3. ("The Order...

provides that the Special Prosecutor shall not be discharged 'except
for extraordinary improprieties on his pru-t and without the President's
first consulting /several naaed Congressional leaders of both political
parties/ and ascertaining that their consensus is in accord with his
proposed action.'")
220
Robert H. Bork
page 3
(c) Can you provide the exact language of any such assurance
given by the President since his statement of October 26?
(d) Even if the President made such an assurance, vould there
be any legal obstacle to his changing his mind and reversing his
position on the subject?
3. Doesn't the Court of Appeals decision in Nixon v. Sirica
constitute controlling precedent in future cases vhere the federal
grand jury requests further tapes and records from the White House
under similar situations?
k. Should the White House tapes and records relevant to the
duties of the Senate Watergate Committee be turned over to that
Committee by the President? Please explain.
5. Should the White House tapes and records relevant to the
duties of the House Judiciary Committee in its impeachment investigation
be turned over to the Committee-by the President? Please explain.
6. In your public statements, and in the Department's brief in
Nader v. Bork, you have asserted that the discharge of Prosecutor Cox
constituted an automatic abolition of the regulation under vhich he was
appointed. 2ven accepting this position, which the District Court rejected,
does this mean that the Attorney General (or any Executive branch official
who promulgates regulations) can abrogate or abolish or amend regulations
merely by acting inconsistently with their mandates?
7. Professor Wright said on October 22, 1973 (The Today Show) that
the President violated his and the Attorney General's public pledges when
be told Mr. Richardson to fire Mr. Cox. Do you agree? Please explain.
ntl
8. Prior to October 20, 1973 did you ever discuss with the President
the subject of executive privilege, the tapes, or Mr. Cox's activities?
Please provide details of any such conversations (date, subject, surround-
ing circumstances, who said what to whom).
9. Prior to October 20, 1973, did you ever receive any indication
from members of the White House staff of dissatisfaction with Mr. Cox's
activities or that be might be fired? When? Please explain fully.
10. Subsequent to Mr. Jaworski's appointment as Special Prosecutor,
have you discussed matters of jurisdiction with him?
(a.) Which areas of jurisdiction have you discussed?
(b) What was your position?
221
Robert H. Bork
page k
(d) Were any questions of jurisdiction raised during this period

by the White House? Please provide details.
11. You have been most persistent in your argument that the
constitutional doubts surrounding establishment of a court-appointed
Special Prosecutor might hamper his functioning and jeopardize any
indictments be secures. I might add that your doubts do not seem to
be shared by sost constitutional scholars or a najority of the members
of the Senate.
Yet, Senator Byrd has made a lengthy presentation to the Senate
outlining arguments that the appointment cf Senator Saxbe to the position
of Attorney General would violate the constitutional prohibition against
senators' assuming offices whose eeolucents have been increased during
their t e n s . It seems to me that, if Senator 3yrd is right, we would
run considerably graver risks with an ineligible Attorney General than
the risks you have pointed out in the case of a Special Prosecutor.
For example, prosecutions might be invalidated, antitrust cases nullified
and other official acts of the Attorney General thrown into litigation.
Why do you believe it so unwise to tal-re a miniaal constitutional
risk with a court-appointed Special Prosecutor, yet perfectly acceptable
to take, if Senator Byrd is correct, a more wide-ranging risk with the
nomination of a potentially ineligible Attorney General?
Because the Judiciary Committee will be considering final action
on the Special Prosecutor legislation next Wednesday, I would request
that, if possible, you submit your responses to these questions by
Monday, November 19.
Blank you for your cooperation.
Sincerely,
222
CONG U/16/73
by mess - il/16 Itr to the Acting AG r Sen Edward
Kennedy, Re: Vv'as not present during Mr, Bork's testi-
mony before the Judiciary Comte on Wed, So that his
(Mr. Bork's) appearance before the Comte during this
series of hearings can be obviated, submits several
questions, the responses to which will be included in
the hearing record. Requests responses by Kov. 19
11/16 - Mr. Bork - by hand

cc to Hugh Durham * by hand
223
fftreof % Attorney (S
.D. (B. 20530
Honorable Edward M. Kennedy

United States Senate
Dear Senator Kennedy:
In response to your request of November 16, 1973, I am forwarding

the responses to the questions which you posed in the order which they
appear in your letter.
1.
Your first question and its subparts refer to the scope of the "consensus"
provision in Mr. Jaworski's charter. Before responding to your specific
inquiries, I believe it would be helpful to place the "consensus" provi-
sion in proper perspective.
The charter issued by Mr. Richardson for Mr. Cox is identical to the
charter issued by me for Mr. Jaworski with the sole exception of the
"consensus" provision. While Mr. Cox's charter did contain a provi-
sion relating to removal, it was silent as to any other limitations and I
think it clear that there existed legal power to limit Mr. Cox's jurisdiction.
In establishing a charter for Mr. Jaworski, the "consensus" provision

was inserted for the purpose of providing additional safeguards for the
Special Prosecutor. Although public discussion has focused on removal,
it was intended that the "consensus" provision apply to any attempt to
limit the Special Prosecutor's independence, including his jurisdiction.
and that was the way I stated the matter in the press conference at which
I announced Mr. Jaworski's appointment. Due to a drafting error the
"consensus" safeguard in the new charter appeared to apply only to
removal. I have amended the charter to make clear that the "consensus"
provision applies to both removal and any other limitations. (A copy of
the amended charter is enclosed herewith).
(a) As noted above, under the charter as now written, the "consensus"
provision applies both to removal and any other limitations.
224
- 2 -
(b) The "consensus" provision does not require the consent of the
Special Prosecutor, however, in my view consensus on any
.action which the Special Prosecutor opposes is so exceedingly
unlikely as not to be a practical possibility.
(c) Public discussion may well have focused on removal because of

the discharge of Mr. Cox but as I have indicated the "consensus"
provision is a safeguard against other limitations as well.
(d) The "consensus" provision is not an added limitation, rather it is

clearly an added safeguard since any limitation now requires a
consensus of Senators Mansfield, Scott, Eastland, and Hruska,
and Representatives O'Neil, Ford (or his successor), Rodino, and
Hutchinson. \
(e) I cannot conceive of any likely circumstances under which the

President would attempt unilaterally to limit or change the juris-
diction or independence of the Special Prosecutor.
(f) Mr. Jaworski has all of the jurisdictional freedom enjoyed by

Mr. Cox and he has the additional commitment that he will not be
discharged! his jurisdiction redefined, or his independence other-
wise limited except with the consensus of the named Congressional
leaders. The Special Prosecutor's independence has not been
undermined but reinforced.
2.
As Acting Attorney General I feel that it would be improper for
me officially to express views on what public statements the
President should or should not make on this subject. Through
General Haig, the President has promised cooperation with the
Special Prosecutor and made it clear that the latter has the right
to invoke judicial processes should disagreement occur.
3.
In my opinion the Court of Appeals' decision in Nixon v. Sirica
is controlling precedent in this area. Like other precedent, it
may be clarified or modified by future decisions, should any occur.
4. and 5.
As Acting Attorney General, it would be improper for me to comment
on the subjects referred to in questions 4 and 5 of your letter.
225
-3-
6.
The district court opinion in Nader v. Bork is presently under
review in the Civil Division of the Justice Department. Pending
completion of that review and formulation of the Department's
position as to appeal, it would be improper for me to discuss
matters which were, and may be, the subject of the litigation.
In any case, I doubt that your question is susceptible of a flat answer
that would cover all circumstances.
7.
I did not hear Professor Wright's comment and, in any event,
it would be improper for me as Acting Attorney General to comment
on essentially political judgments.
8. r
(_I have never discussed with the President the subjects of the tapes
or Mr. Cox's activities either before or after October 20, 1973 J
The President discussed the subject of executive privilege with me
on one occasion. Professor Charles Black of Yale Law School had
written a letter to the New York Times upholding the President's
right to confidentiality. The President telephoned me to ask that
I tell Professor Black, whom he knew to be my colleague, that
the President agreed with his argument and admired the professional
skill with which he had made it. That was the only occasion upon
which the President mentioned executive privilege to me.
9.
Prior to October 20, 1973, I discussed Mr. Cox's activities with
members of the White House staff only at the specific request of
Attorney General Elliot Richardson. Mr. Richardson asked me to
assist him in thinking about problems of Mr. Cox's jurisdiction
and specifically asked that I discuss the issue with members of the
White House staff as well as with Mr. Cox and himself in an effort
to discover areas of disagreement and to help frame possible solu-
tions. To that end, I discussed jurisdictional issues on two or
three occasions with Mr. Fred Buzhardt and he indicated generally
that he thought Mr. Cox's staff might be going beyond any reasonable
construction of the jurisdictional guidelines. Mr. Buzhardt, however,
did not articulate any overall concept of Mr. Cox's jurisdiction. The
task assigned me by Mr. Richardson was not the resolution of
226
-4-
specific disputes but merely the attempt to give conceptual clarity

to guidelines Mr. Richardson himself regarded as insufficiently
precise. To that end, I gave Mr. Richardson a memorandum which
he used as a discussion paper in a meeting with Mr. Cox and two
members of his staff at which I was present. The discussion ended
rather inconclusively, all persons agreeing to think the matter
over in anticipation of further discussions. That ended my partici-
pation in the jurisdictional discussions. This subject was explored
in my testimony before the Committee last Wednesday, particularly
in questioning by Senator Hart.
The question of the possible discharge of Mr. Cox once arose in

a telephone conversation with General Haig. He said that many
members of the public were expressing the view that Mr. Cox should
be discharged because of a press report, the contents of which I
have now forgotten, and asked my opinion. I said that I thought
Mr. Cox should definitely not be discharged over the episode and
General Haig said he agreed with me. That telephone conversation
was sometime last summer. I cannot fix a date to it but I believe
Mr. Richardson had a similar telephone conversation at about the
same time.
10.
I have not discussed Mr. Jaworski's jurisdiction with either him
or the White House except to say that I thought it should be the
same as the jurisdiction given, Mr. Cox.
11.
I do not believe there is any constitutional risk in the nomination of
Senator Saxbe as Attorney General once the statute lowering the
' compensation and emoluments of the office is enacted. On the other
hand, I think there is grave constitutional doubt about a court-appointed
Special Prosecutor, and the district judges of the District of Columbia
appear to share my doubts, at least about the wisdom of the idea.
Thus, I do not agree with the premise of your question that there is
"minimal" constitutional risk in the court-appointed Special Prosecutor
but a "wide-ranging" risk in Senator Saxbe's appointment.
I hope that I have satisfactorily answered your questions.
Sincerely,
Robert H. Bork
Acting Attorney General
227
Senator METZENBAUM. The first document is a memorandum

from Alexander Haig to the President, dated August 2, 1973, with
two attachments. Then there is a letter from Robert Bork to Gener-
al Haig, dated July 31, 1973, and a letter from Charles L. Black,
Jr., to the editor of the New York Times, dated July 25, 1973.
The second document or group of documents is a memorandum
from Pat Buchanan to Al Haig, dated August 1973, with marginal
notations and an attached newspaper column.
The third document is a memorandum from Al Haig to the Presi-
dent, dated August 8, 1973, with two attachments.
Judge BORK. I seem to have about five copies of each of these,
Senator. If I can find the August 8th onehere we are.
Senator METZENBAUM. All right?
The CHAIRMAN. Take your time, Judge.
Judge BORK. That is fine.
Senator METZENBAUM. And a draft Congressional Record insert
by Congressman Eckart of Texas, dated August 1, 1973, as well as a
letter from Robert Bork to General Alexander M. Haig, Jr., dated
August 3, 1973, with marginal notations and an attached Congres-
sional Record insert.
The fourth is a letter from Robert Bork to Leonard Garment,
August 3, 1973, with an attached Congressional Record excerpt.
The fifth is a log of the President of August 3, 1973.
First, Judge Bork, would you turn to Document A? Do you have
that there?
Judge BORK. Yes.
Senator METZENBAUM. The second page of that document is a
letter from you to General Haig. It states in part, "The enclosed
letter to the New York Times makes so persuasive an argument for
absolute presidential privilege that I thought you ought to see it. It
has helped change my prediction on the probable outcome of litiga-
tion on the subject."
General Haig sent your letter to the President, as shown on the
first page of the document. He included this statement of his. "It is
also significant that Bob Bork has reversed his originally skeptical
attitude on our position."
Now, Judge Bork, you were not simply passing on an interesting
article. You were advising Mr. Haig and the President regarding
your legal opinion of the President's right to turn over subpoenaed
written or taped records of consultations held by him as President.
Contrary to your statements that you were not involved, you were
actively advising the White House; isn't that correct?
Judge BORK. Of course it is correct, Senator. The Department of
Justice is asserting executive privilege or government confidential-
ity, whatever we are going to call it, all of the time. And, in fact, at
one stage of this, Attorney General Elliot Richardson asked me to
try to work out with Mr. Philip Lacovara a common position on ex-
ecutive privilege so that the Watergate Special Prosecution Force,
which was trying to defeat executive privilege, and the Department
of Justice, which in all kinds of casesnot in the Watergate cases,
but in all kinds of caseswas asserting executive privilege. Mr. La-
covara and I tried to work out some means in which we would not
wind up opposing each other, not directly, but wind up asserting
opposing positions.
228
Executive privilege was a very touchy business, and I talked to

people about it frequently. Now, in this letter, I think I had said to
the White HouseI do not know what I said. I guess I had said
that the strong stand on executive privilege, which they asserted in
all kinds of cases, was not going to work. My good friend, Charles
Black, who was a colleague of mine at Yale, sent me this letter and
said he was sending it to the New York Times. I think it appeared
in the New York Times. And I passed it on.
Senator METZENBAUM. Judge Bork, apparently you had previous
communications with the White House on this issue; is that right?
Judge BORK. Of course, because we had the executive privilege
problem in all kinds of cases, and we were concerned about getting
our positions worked out.
Senator METZENBAUM. That is the implication of General Haig's
statement, that you had reversed your originally skeptical attitude
on the White House position.
Judge BORK. I do not know if it was reversed. What I said was it
helped change my prediction on the probable outcome of litigation.
I do not even know what litigation that means.
Senator METZENBAUM. Let me ask you, Judge Bork, about Docu-
ment B.
Judge BORK. Yes.
Senator METZENBAUM. That document is a memo sent from Pat
Buchanan to Al Haig, dated August 3, 1973, attaching a column by
Professor Charles Black. In that column, Professor Black argued
that, "Mr. Nixon is dead right in refusing compliance with subpoe-
nas, whether issued by a committee of the Senate, by a grand jury,
or by any other authority, commanding the production of written
or taped records of consultations held by him as President."
In other words, he argued that President Nixon could stonewall
on the issue of turning over the tapes sought by the special pros-
ecutor. Mr. Buchanan's comment in the column was, "Maybe this
guy could help us out." General Haig's note back to him said,
"Right. Solicitor General thinks highly of him and supports this
analysis."
In other words, Mr. Haig was relying on your endorsement of
Professor Black and your reversal of your position that the Presi-
dent had no obligation to turn over the tapes.
Judge BORK. Well, I did not say that, Senator. I said that it
helped change my prediction of the outcome of litigation. I should
say I have not read this letter by Professor Black in a long time,
but Professor Black is a highly respected constitutional scholar and
was not a supporter of Mr. Nixon's.
Senator METZENBAUM. I am not questioning that. I do not think
that is the issue.
Judge BORK. But you did say that, in other words, he said the
President could stonewall. Professor Black would not have said a
thing like that.
Senator METZENBAUM. Let me ask you about Document C. That
document includes a letter dated August 3, 1973, from you to Gen-
eral Haig, forwarding another analysis by Professor Charles Black,
which was inserted in the Congressional Record by Congressman
Eckart of Texas. You say in your letter, "I think you will find these
additional ideas quite interesting."
229
As in the previous case, "these ideas" you were referring to had
to do with Professor Black's position that the President did not
have to respond to a subpoena by anyone; in effect, that he had un-
limited executive privilege. General Haig then passed on your sub-
mission in a memo to the President dated August 8th. His memo
said, "Bob Bork has sent me a copy of another letter written by
Charles L. Black, Jr. I believe you will find it of interest."
As I see it, again, contrary to your statement that you were not
involved, you were giving your advice to the White House. And as I
understand the role of a Solicitor General, the Solicitor General is
the attorney for the United States, not necessarily the private
counsel to the President of the United States. Is that correct?
Judge BORK. NO, he is attorney for the United States, and some-
times the United States is represented by the President.
Let me make one thing clear, Senator Metzenbaum. I never ad-
vised the White House how to meet, how to deal with the Water-
gate Special Prosecution Force. The most I did was send over
Charles Black's letter to the New York Times, which was public,
and there was no business about it. The only time I dealt with the
White House on executive privilege was when Mr. Richardson put
me in charge of trying to mediate a position between the White
House and Department of Justice and the Special Prosecution
Force. Since we represented the President in a lot of litigation
having nothing to do with Watergate, it was essential that we work
out, if we could, some particular position.
I used to confer with Fred Buzhardt, the President's counsel, and
with Philip Lacovara. We never achieved an accommodation in
principle.
Senator METZENBAUM. Let me proceed. In November 1973, you
testified before the Senate Judiciary Committee regarding the func-
tions of the new special prosecutor. After that hearing, Senator
Kennedy wrote you a letter dated November 16, 1973. He asked
you, "Prior to October 20, 1973, did you ever discuss with the Presi-
dent the subject of executive privilege, the tapes, or Mr. Cox's ac-
tivities? Please provide details of any such conversations, date, sub-
ject, surrounding circumstances, who said what to whom."
You responded, "I have never discussed with the President the
subjects of the tapes or Mr. Cox's activities either before or after
October 20, 1973. The President discussed the subject of executive
privilege with me on one occasion. Prof. Charles Black of Yale Law
School had written a letter to the New York Times upholding the
President's right to confidentiality. The President telephoned me to
ask that I tell Professor Black, whom he knew to be a colleague,
that the President agreed with his argument and admired the skill
with which he made it." This is still you answering.
Judge BORK. Yes.
Senator METZENBAUM. "That was the only occasion upon which
the President mentioned executive privilege to me."
Judge BORK. That is true.
Senator METZENBAUM. NOW, Judge Bork, that answer may be
technically true, but it leaves the impression that the President
happened to see Professor Black's letter and decided to call you
simply because you were an acquaintance of his. You completely
failed to mention
230
Judge BORK. May I see my response, please, Senator?

Senator METZENBAUM. YOU have it there.
Judge BORK. I do?
Senator METZENBAUM. Yes. While you are getting that, I will
carry on because time is running out.
You completely failed to mention that you were the one forward-
ing Charles Black's analysis to the White House, and that you were
endorsing it. Was not your answer to Senator Kennedy only half
the story? Or to put it another way, did you not fail to answer the
question completely?
Judge BORK. I do not think so, Senator. It occurred to me that it
was important that I forward a copy of a New York Times letter to
General Haig, and that General Haig gave it to President Nixon,
but I did not discuss executive privilege with the President. He
called me once to say he liked Professor Black's letter. I think, if I
have my dates correctsince the President did not call me fre-
quentlythat I took thatI think. Now, I want to be careful be-
cause I am not sure of the dates.
I had been asked by General Haig right in that period of time to
resign as Solicitor General and become President Nixon's chief de-
fense counsel. After discussions, I convinced General Haig that I
was not the man for the job. And I think I interpreted the call
from the President more as a gesture to say he did not hold it
against me, because there was nothing to the call and he would not
ordinarily have called.
Senator METZENBAUM. Judge Bork, you have said that firing Mr.
Cox could not hamper the investigations of the Office of the Special
Prosecutor. At your 1982 confirmation hearings, you stated, "There
was never any possibility that the discharge of the special prosecu-
tor would in any way hamper the investigation or the prosecutions
of the special prosecutor's office."
But you had no guarantee from President Nixon at the time he
fired Mr. Cox that there would even be another special prosecutor.
Is it not a fact that the decision to appoint a new special prosecutor
was not made until several days later after the President had pro-
voked a firestone of controversy around the country?
Judge BORK. That is right. Initially, we intended to leave the
Special Prosecution Force intact but not to appoint a new special
prosecutor, and they would go on under Mr. Ruth and Mr. Laco-
vara as before. But we did not initially contemplate a new special
prosecutor until we saw that it was necessary because the Ameri-
can people would not be mollified without one.
Senator METZENBAUM. AS a matter of fact, at your own press
conference on the following Wednesday, October 24th, you were
asked, "Would these mechanisms"that is, to continue the investi-
gation"fall short of appointment of a special prosecutor as we
know a special prosecutor?" You answered, "They may or may not.
I have got a variety of alternatives in mind."
A report in the Washington Post of October
Judge BORK. Senator, I think there is more in there on that sub-
ject, is there not? Somebody asked me if I had contemplated a new
special prosecutor, and I said, "The thought has crossed my mind."
231
Senator METZENBAUM. That may very well be the case, and I will
not challenge you if you say that you said it. I will not take issue
with you.
The report in the Washington Post of October 24th stated, "Pe-
terson"who was then head of the Criminal Division at Justice
"and Bork met yesterday afternoon with senior staff members of
Cox's prosecuting office to discuss how the investigation will pro-
ceed. 'The independence of the prosecution is still a problem,' one
of the senior Cox staff members who attended the meeting said last
night. Peterson said that no one has come to any firm conclusion
about the hiring of another independent prosecutor. The last few
days have brought that concept into question."
The White House submission on your behalf contains this state-
ment: After carrying out the President's instruction to discharge
Cox, Bork acted immediately to safeguard the Watergate investiga-
tion and its independence. He promptly established a new special
prosecutor's office, giving it authority to pursue the investigation
without interference. And according to a published report, you told
the American Bar Association in 1982, when you were being con-
sidered for an appointment to the Federal Court of Appeals, that
after Cox was fired you "immediately began searching for another
special prosecutor."
As a matter of fact, you actually ordered that the Justice Depart-
ment itself take over the investigation, as I think you have just in-
dicated, and the decision to appoint a new special prosecutor was
made by the President several days later only after widespread
public criticism. Is that not correct?
Judge BORK. Senator, it is entirely correct, but let me tell you
how that happened.
On Wednesday afternoon, when I held the press conference and
said, in response to a specific question about whether a special
prosecutor was one of the mechanisms I had in mind to get evi-
dence, I said, "It has, let us say, crossed my mind." That morning I
was not telling the press everything that we discussed. I think you
have documents in your possession that show that that morning
before the press conference I met at the White House with Leonard
Garment, Fred Buzhardt and Bryce Harlow. We recommended to
the President a new special prosecutor. So that was on track. I had
clearly been thinking about it before Wednesday morning, or I
would not have gone over there and made the recommendation.
But there were two other aspects in which you used, Senator, the
word "immediately." I did promptly act to safeguard the Special
Prosecution Force. My great concern was that there might be a lot
of resignations over there which would hinder the investigations
and prosecutions.
I understood from the beginning that my moral and professional
life were on the line if something happened to those investigations
and prosecutions, and that is why I was adamant in asking them to
stayand Henry Peterson was, too.
Senator METZENBAUM. Judge Bork, you have said a number of
times that you went ahead and conducted yourself as you did be-
cause you were worried that there might be a number of resigna-
tions. The American Government, the American people were total-
ly distraught at this moment. You have sort of suggested that be-
232
cause some lawyers might quitthere are plenty of lawyers

around. I am a lawyer, plenty of lawyers aroundthat because
some lawyers might quit, even though they had had some experi-
ence in this area, that because of that you went forward and did
this act which the court determined to be an illegal act. Is that not
pretty hard for the American people to accept?
Judge BORK. If I thought it was just a question of replacing one
lawyer with another, it would be pretty hard to accept. That is not
what was taking place, however.
Senator, let me talk about that. I think maybe it is time now to
tell the story. Do we have time to tell the story?
The CHAIRMAN. YOU can have all the time you want, Judge.
Judge BORK. AS I said, my involvement with the Special Prosecu-
tion Force and Mr. Cox was limited to trying to draft, at the re-
quest of Mr. Richardson, a redefinition of the jurisdiction because
the feeling was that the jurisdiction was stated so broadly that it
covered things in no way related to Watergate. I did draft it; we
discussed it with Mr. Cox. We never came to an agreement, and all
this other stuff happened.
I also dealt with the Special Prosecution Force through Mr. Laco-
vara at Mr. Richardson's request on the question of accommodating
our positions on executive privilege. I had no connection with the
negotiations with Mr. Cox about the order not to go to court and so
forth and so on. I wish I had because I could have said, if I had
been involved, what are you going to do if Mr. Cox refuses the
orderas, indeed, he should have. I had never disputed that.
If they had asked themselves that question, they might have
asked: Who is going to discharge Mr. Cox? And if they had learned
that Mr. Richardson and Mr. Ruckelshaus were not going to do it,
they never would have gone forward with that order. They were
very sick that night because they assumed that they would not
have to get down to me.
Now, I was sitting in my office Saturday afternoon writing a
letter, I think to a third grade class about the Bill of Rights, and I
went down at the time scheduled for Mr. Cox's press conference
into the office of Jack Hushin, who was our press officer then. We
watched it on television. The minute it was over, Mr. Richardson's
secretary came in the door and said, "The Attorney General wants
to see you."
We went in then, into his office, and Mr. Ruckelshaus was there
and a few of Mr. Richardson's aides, and we talked about this crisis
that was developing. Finally, Mr. Richardson said something like,
"I think they are going to order me to fire him," or "They have
ordered me, or "I think they are going to order me." He said, "I
cannot fire Cox. Can you, Bill?" And that was the first time it oc-
curred to me that I was third in command at the Department of
Justice. I suddenly saw it.
The CHAIRMAN. Excuse me. Would you repeat that? You said,
"He said, 'I cannot fire him'"?
Judge BORK. "I cannot fire Cox," or words to that effect.
The CHAIRMAN. And "Can you, Bill?"
Judge BORK. TO Ruckelshaus. Ruckelshaus said no.
The CHAIRMAN. If you do not mind, Senator. Did you or anyone
else ask why he could not fire him?
233
Judge BORK. We knew. He said he promised the Senate.

The CHAIRMAN. But did he say it at the time?
Judge BORK. I think so. You know, you can ask him. That was
my understanding. Mr. Richardson and I had discussed the tension
growing between the Special Prosecution Force and the White
House.
The CHAIRMAN. Was there any discussion at that time with the
three of you in the room, or are there just two of you now?
Judge BORK. NO, three of us plus an aide or two of Mr. Richard-
son's who were going in and out.
The CHAIRMAN. But there were three principals in the room.
Judge BORK. Yes.
The CHAIRMAN. YOU, the Attorney General and Ruckelshaus.
Judge BORK. Right.
The CHAIRMAN. And when it was at least implied or stated that
he could not be fired
Judge BORK. NO, he did not say he could not be fired. Mr. Rich-
ardson always thought he could be fired. He said that he could not
do it personally.
The CHAIRMAN. He could not do it personally, and the reason
being?
Judge BORK. His assurances to the Senate when he was con-
firmed.
The CHAIRMAN. Did Ruckelshaus think those assurances applied
to the department or to an individual?
Judge BORK. Well, the assurances to the Senate cannot very well
apply to the department unless you think the assurance was some-
thing like a statute, which the Senate, of course, could not pass by
itself.
Now, Richardson regarded them as personal assurances, and I
will tell you why. I am skipping over now, but I would like to come
back to this.
Later in the afternoon, Richardson went over to the White
House. They attempted to persuade him to go ahead. He attempted
to tell him he could not. While he was gone, Bill Ruckelshaus and I
discussed what might happen in the outcome. And I realized, be-
cause of a conversation we just skipped, I realized I would probably
be facing this thing. I never asked Ruckelshaus what I should do. I
did say to him at one point, "Don't you think my moral position is
different from yours?" He said yes. That is all I asked him.
But let me go back to the conversation that maybe
The CHAIRMAN. Why was your moral position different?
Judge BORK. I had not madeas I understand, Mr. Ruckelshaus
felt that there was something in his confirmation hearings that
tended to bear on this; there was none in mine because I was con-
firmed long before. He also regarded himself as having come in as
Elliot Richardson's deputy, so that he felt himself bound in a sense
by Elliot Richardson's promises. I did not come in as Elliot Rich-
ardson's man, and I had made no assurances to the Senate.
But let me go on with this story. He said, "Can you do it, Bill?"
And Bill said no. That is the first time I realized I was going to be
asked the question. And he said, "Can you do it, Bob?" The thought
had never occurred to me before, and it hit me like a ton of bricks.
So I said, "Let me think." And they went on talking, and I got up
234
and walked around Elliot's office several times. I finally said, "Yes,
I can do it, but I will resign immediately afterwards." And they
said, "Why would you resign?" And I replied, "Because I do not
want to be regarded as an apparatchik," an organization man who
does whatever the organization wants.
They said, "If you do do it," both of them said, "don't resign. The
department needs the continuity and the stability." That is when
the thought about the necessity of holding the department together
first came into my mind, and Elliot and Bill were both quite strong
on the point that, if you do do it, do not leave because the depart-
ment needs this continuity. And I was the one person who was a
department-wide officer who was left and who could make a good
attempt at both preserving the Department of Justice and preserv-
ing the Watergate Special Prosecution Force, which was obviously
the thing that had to be done in both cases.
The CHAIRMAN. But that was not part of your reasoning, based
on what you have just said, when you said, "I can do it." You just
said, "I can do it," and then only after that you were told byand
you said, "I would resign." And they said, "Well, do not resign."
And the reason not to resign is to hold the department together,
and you said, "That is when it struck me."
Judge BORK. My first thought to do it was the fact that we were
in enormous governmental crisis. I do not know if everybody re-
members
The CHAIRMAN. I was here. I remember it.
Judge BORK [continuing]. The sense of panic and emotion and
crisis that was in the air. It was clear then, I mean it was clear
from my conversations with Mr. Richardson and Mr. Ruckelshaus
that there was no doubt that Archibald Cox was going to be fired
by the White House in one form or another. The only question was
how much bloodshed there was in various institutions before that
happened.
The CHAIRMAN. I am trying to figure out Bob Bork, the man,
here. I am not talking about the legality of this.
Judge BORK. NO. I understand.
The CHAIRMAN. Richardson says, "I cannot fire him. I made a
promise." Ruckelshaus says, "In my confirmation hearing"
Judge BORK. Well, he did not say "In my confirmation hearing."
This was all in the air.
The CHAIRMAN. And they said, "Can you do it?" And you said, "I
do not know," and you got up and walked aroundwhich I think
anyone wouldand then came back and said, "Yes, I can do it."
Judge BORK. Yes.
The CHAIRMAN. And this is one of the most important moments
in your life, a crisis in your life. It would be for anybody. Can you
tell us what you were thinking when you got up and walked
around? What went through your mind?
Judge BORK. Well, you know, it is a little hard to recall the
blurred thoughts and the emotion of the moment, but one thought
that went through my mind was that we were in a governmental
crisis which would not be resolved until Mr. Cox left. At no time
did I have any intention of anybody but Mr. Cox leaving, and I had
nothing against Mr. Cox. Mr. Cox had behaved perfectly properly.
235
Had I been in his position, I would have refused that order not to
go to court. He had to refuse it.
But that was the crux of a crisis which had to be resolved sooner
or later. Now, the White House, when they got to me, began talk-
ing about the Six-Day War going on.
Senator KENNEDY. Can I ask just one question?
Judge BORK. Yes.
Senator KENNEDY. When you were walking around the room, did
you ever think about the legally binding regulations that were in
effect and that were not suspended for 3 days? I was here at the
time that that charter was drafted, and I must say anyone that re-
viewed that history, any member, would understand that those reg-
ulations did not just apply to the individual who was Attorney
General; it applied to the Office of the Attorney General.
Judge BORK. I understand that.
Senator KENNEDY. If you understand that, I can see why you
were walking around the room.
Judge BORK. NO, we were not, Senator
Senator KENNEDY. Specifically, were you troubled at all that
there were legally binding regulations that were in effect?
Judge BORK. I think we all assumed
Senator THURMOND. Mr. Chairman, let me make a statement.
Senator KENNEDY. Could he answer that question?
Senator THURMOND. Senator Kennedy has had his time. I suggest
we go on around and let him go on a second go-round. He is not
entitled to go now.
The CHAIRMAN. Quite frankly, Judge, the reason why I pursued
this, I think maybe we could put an end to this. If you would
rather us go, we will go on.
Judge BORK. NO. Let me answer one question, and we can come
back to it later.
The CHAIRMAN. Yes, all right.
Judge BORK. Senator Kennedy's last question.
The CHAIRMAN. We have interrupted you.
Judge BORK. I wanted to answer the last question from Senator
Kennedy, if I may.
The fact is none of us thought that that regulation was a bar to a
presidential order. I have seen Mr. Richardson quoted in the paper
recently saying that he never thought the regulation was a bar to
Mr. Cox's firing. None of us thought that. Nobody said, "But there
is the regulation." We assumed the President could do this over an
Attorney General's regulation. That is what we thought at the
time. That issue has never been determined. Right or wrong, that
is what we thought.
The CHAIRMAN. Thank you. I think we will go back.
Senator, you have two more minutes, and then we will go on.
Senator METZENBAUM. In your interview with the ABA in con-
nection with your nomination in 1982, did you tell Mr. Coleman
that you guaranteed Mr. Cox's deputies they would have access to
the tapes?
Judge BORK. I do not know. All I told them, and I suppose what I
told Mr. Coleman, is that I guaranteed they would have a chance
to go for the tapes in court, or the evidence in court including the
tapes.
236
Senator METZENBAUM. Judge Bork, there seems to be some ques-

tion as to what you did tell Mr. Coleman at the ABA investigation
in 1982. My staff has discussed with the ABA the question of ob-
taining information about your statements to the ABA regarding
your role in the Watergate matter. The ABA has said it is willing
to furnish that information if you will agree to waive any objection.
Would you be willing to waive any objection to the ABA provid-
ing that?
Judge BORK. YOU mean the notes from Mr. Coleman?
Senator METZENBAUM. The entire matter of your inquiry with
the ABA at that point concerning this matter.
Judge BORK. Certainly. In fact, I thought I had. Somebody from
the Department of Justice or the White House asked me if I would
be willing to waive a week ago, and I said yes.
Senator METZENBAUM. If some written document is needed, we
will just pass word to you to make it available.
Judge BORK. Let me say this: As to what I said to Mr. Coleman
I think those are his notes of the conversationI do not know what
words I used. I have never tried to convey the impression that I
started searching for a special prosecutor instantaneously. Satur-
day night and Sunday I was not searching for a special prosecutor.
By Tuesday, I was thinking about it; whether I thought about it
Monday, I do not know.
Senator METZENBAUM. Thank you.
The CHAIRMAN. Thank you very much, Judge, and I thank my
colleague from Wyoming for his indulgence of the extra 10 min-
utes.
The Senator from Wyoming.
Senator SIMPSON. Mr. Chairman, you are very good, and I do
have to get over to a clean water markup in the Environment and
Public Works. I do appreciate your indulgence and your courtesy.
Thank you.
Well, now, you have heard from our spirited and tenacious col-
league from Ohio.
Judge BORK. We got halfway through the Saturday Night Massa-
cre. We will have to get the other later, I suppose, Senator.
Senator SIMPSON. He will be back. He will be back.
Why not? We have only been talking about it for 14 years.
Senator SIMPSON. Fourteen years. This is a curious place. If you
go out in the land and say, "What were you doing on the night of
the Saturday Night Massacre," a guy will say, "What are you talk-
ing about?" But in this town when you say, "What were you doing
on the night of the Saturday Night Massacre," they say, "I was
just finishing shaving. I was going out to dinner. I will never forget
it my whole life. I went limp. My wife and I talked and huddled
together and had a drink and just shuddered in shock." [Laughter.]
That really is not the way it is out in the world about the Satur-
day Night Massacre.
Judge BORK. I sometimes refer to it, Senator, as the events of Oc-
tober 20th instead of the Saturday Night Massacre.
Senator SIMPSON. Whatever it was, out in the real world they do
not refer to it as the events of anything, except that they know
that there was a crisis; they know that the President was wrong;
237
they knew it was wrong to fire Arch Coxwho was my professor in

labor law, so I got a little touch of that remarkable man. A great
guy. They knew all that was wrong and that there was a crisis, but
let me tell you, when it all came about and Jaworski tooled up,
they knew that there had been no gap. You can dance on the head
of the pin all day and all night and know that it got done.
Judge BORK. That is what the Watergate Special Prosecution
Force says in their official report.
Senator SIMPSON. Well, of course.
Judge BORK. They did not miss a beat.
Senator SIMPSON. Of course. Fourteen years' worth, and you have
talked about it now twice, I guess.
Judge BORK. Oh, I talked about it innumerable times, Senator.
Senator SIMPSON. I mean before this body:
Judge BORK. I talked about it with the Senate Judiciary Commit-
tee in 1973. I talked about it before the House Judiciary Committee
in 1973. I talked about it before the Senate Judiciary Committee in
1982, and I am talking about it again today. And I have talked
about it before in numerable other groups.
Senator SIMPSON. Well, in my mind, we are not going to find too
much more about that. You have given access to every record and
waived every possibility to withhold anything, and that is a very
appropriate stand.
But I want to touch on one thing that the Senator from Ohio
said yesterday and again today about the use of the word "illegal".
It is very sinister as it is presented that the decision to file Archi-
bald Cox was held to be illegal by a court, and should we then put
a man on the Supreme Court of the United States who has done
something illegal? And that is the sinister connotation of all of
that stuff, along with the reference to the case of Nader v. Bork,
and it was highly significant and it does not get said hereI want
to say it one more time because there is no such thing in politics as
repetition. You can tell somebody the same thing ten times and on
the tenth time they say, "Oh, I did not know you believed that."
I have been all through that. This case of Nader v. Bork was va-
cated, period. You know, void, out the window, we all practiced
law, some of us. We know what vacating a decision is. It means it
is a zip, an absolute zip, in any kind of language you want to use,
whether it is Black's Law Dictionary or the babblings of Al Simp-
son, it is a zip; it means nothing.
They vacated the decision upon the order of the court of appeals
and the case has no legal consequence whatsoever, period. Would
you agree with that?
Judge BORK. Certainly. That is entirely what "vacated" means.
Senator SIMPSON. With any other lawyer or with any other
judge. So I think if we are going to hear this continual referral to
Judge Gesell's opinion as authority for the proposition that the dis-
charge was illegal, that that is just not so.
Judge BORK. Well, Senator, it should be said that, as Mr. Cox
said, that it was at most a technical defect because one could re-
scind that charter at any time and then the discharge would
follow. So, you know, it is a question of timing. But I think it was
not even a technical defect. I think a Presidential order overrides
an Attorney General's regulation.
86-974 0 - 89 - 10
238
Senator SIMPSON. I think it was highly unusual for them to do
that under the circumstances, and that was done. But I just want
to correct that distortion. There seems to be a continual distortion,
and I do not think it is appropriate. And again it came up in its
earliest form from some over-wrought executive director and in no
way should it continue to prevail here, in my mind.
Now I wanted to ask a questionyou are helping me, Orrin; you
are furnishing me all sorts of good things. What have you got here?
This is an impossible question.
I ask you this: We now have heard from the Senator of Ohio, and
he is superb. He and I have been on the opposite side of more
issues, but he is a remarkable spirited man, and he has been a
great help to me in conference committees. If you want to go to a
conference committee, take Metzenbaum with you. He is good stuff.
But he has asked you, and he has gone into the 1973 press con-
ference, which I guess was the 23d or 24th
Judge BORK. It was Wednesday, whatever that was.
Senator SIMPSON. Pardon?
Judge BORK. I think it was Wednesday, whatever that was.
Senator SIMPSON. OK. And I noted that the Washington Post
went into that, but they both stopped at a certain point in the pro-
ceedings of the transcript of October 23d or October 24th. I have a
copy of the transcript before me, 1973. It is odd that they would
both stop. I mean if we are trying to develop a record, we ought to
get it all in. And that is what you have done.
And meanwhile your opponents have spentand not Senator
Metzenbaum, but your corporate opponents, your non-profit corpo-
rate opponents are so busy in this nonunanimous decision bit that
they have just nearly reached the point of exhaustion, and they are
out working now. I do not know where they are, but they are.
But they seem to forget the text, the full text, and so you were
asked these questions as Acting Attorney General, with the special
prosecutor as one of the considerations in mind. It has, let us say,
crossed my mind.
Judge BORK. I just had recommended it that morning to the
President.
Senator SIMPSON. And then everything stops.
Let us go on with it. Let us take it all. Question: Will the Special
Prosecution staff stay together as an entity? Will the head be
under Mr. Peterson, and who will that head be? That is the ques-
tion for Acting Attorney General Bork.
Answer: "Well, right now, and so far as I am concerned, that
head is Mr. Ruth. They will stay together as an entity because I
think their effectiveness demands upon that." That is what you
said. There were other questions.
And then you said at the end, "I recognize, as does Mr. Peter-
son"this is your quote"that the American public must perceive
that the integrity of the Department of Justice and of the criminal
process is unimpaired, as well as our assuring you that that is true,
and we have under consideration a variety of procedures or mecha-
nisms by which that perception may be encouraged or may be
made. The trust may be given to us."
The question then: "Mr. Bork, what are those?" Your response:
"I am not going to discuss the variety of procedures we have under
239
consideration." I would like to have, you know, like Paul Harvey
says, the rest of the story in there. I think that would be honest
and appropriate. And then, of course, the proof is in what hap-
pened, an operation that so irritated and overwhelmed the Presi-
dent that it must have been working pretty appropriately. I mean
that is what happened.
Now enough of that. I just was thinking, what if the fondest
dreams of your opponents come true and that you are not con-
firmed by the Senate, what then can they expect? Well, I think ob-
viously we will have an appointment by this President. There is
nobody that is going to question that, and then we will probably
have a nominee who we will probably confirm almost routinely,
such as a member of the Judiciary Committee, Orrin Hatch or
Paul Laxalt.
Judge BORK. They both sound good to me.
Senator SIMPSON. Yes, not bad to any of us. I do not think any of
us on the panel would spend too great a time putting them right
there in the witness seat. But if that were not the case, that would
splendid. It might be Jerome P. Sturdley, a person who has quite
extensive experience on the bench and in the Bar, one that has
said very little or has written very little, that it was either
thoughtful, challenging or provocative or perhaps one whom the
special interest would have a great deal of difficulty finding out
one wit about for use in their opposition to the Presidential ap-
pointment, and that is, you know, the reason we are here.
But most likely he or she would obviously be one who would de-
cline to do anything of what you are doing. They would not enter
in any way into the exceptional discussion, the give and take, the
review of judicial views and philosophy which we have seen these
past 2 days. You are doing it and will do it, which is really unprec-
edented even for your immediate predecessors, Sandra Day O'Con-
nor, Antonin Scalia and Bill Rehnquist. I think they ought to sober
up and realize they could get another nominee who would say
nothing and tell them nothing and share nothing.
And I think that is worth, you know, considering because I think
the whole text of a new confirmation would be "Senator, I under-
stand your position; I know what you would like me to say, but I
honestly feel, sir, that I must adhere to my view. It would be im-
proper for me as a sitting justice or a nominee or a person dealing
with that issue in the future to advance an answer to that ques-
tion. Next question please."
Now that is what you are going to get in the next load in this
situation. I just think that after looking at some of the responses of
Judges Scalia and Sandra Day O'Connor, and they were perfectly
appropriate and no one challenged them a bit, nor could we in a
new nominee. And you are good enough to lay yourself right out on
the table.
But, you know, the questions are there. They said "I cannot re-
spond to that." That was interesting. They were very adroit and
very upfront and very acceptable, and we all accepted it, we on the
committee. And that is what is a little bit of reality too.
Then I think also of our friends in the fourth estate, as it gets
scratching down through the record of every person who has sat on
the federal bench at least in the last 10 years, I know of no one, no
240
one who has protected first amendment rights more than you. That
is an extraordinary statement, but it is true.
To you New York Times v. Sullivan is milk soup. You are ready
to go for the chunk. And New York Times y. Sullivan was an inter-
esting case. It said that because we are politicians, people could say
things about us that were, quote, "false". People could say things
about us that were defamatory, those were the words, and that we
could do nothing unless we proved actual malice.
Your language in the Oilman case was quite open, and I do not
have it here before me at this moment, but, in other words, you say
anybodyI guess it is kind of like anyone goofy to run for office is
dumb enough to get elected or something like that. But it was said
that we are indeed, and we should be, fair game. We better be able
to tell our story, bring our own brains with us when we come. That
is what the people expect of us.
But you would take that much further, would you not?
Judge BORK. You mean further than New York Times v. Sulli-
van?
Senator SIMPSON. Yes.
Judge BORK. I think someand I have not got a firm position on
how much furtherbut I think some doctrinal adjustment may be
appropriate because the nature of the libel suit has changed so that
it does now pose a greater threat to the press than it used to. But
what the nature of that doctrinal adjustment might be, I have not
worked it all out either.
Senator SIMPSON. But you are saying that indeed it is something
that concerns the media that the libel suit itself, whether valid or
not, has a chilling effect on the fourth estate.
Judge BORK. There are a number of publications that simply
cannot take a major libel suit. They do not have the resources to
defend it, never mind pay the judgment.
Senator SIMPSON. I think that it is worthwhile to recognize what
an extraordinary ally and force you are. One of the quotes from
that case was you said, as you were sticking with the decision, the
fact that this was an expression of opinion. You said it is the kind
of hyperbole that must be accepted in the rough and tumble of po-
litical argument. And I agree with that.
And that is one thing the Senator from Ohio and I have always
agreed on. It is a rough and tumble but you can do it with civility
and we try to do that.
Let us get back to privacy. That is a recurring theme here about
privacy and judicial restraint and Griswold v. Connecticut, and we
have now talked about contraception, homosexuality, sterility or
else sexual preference, sexual gratification. There is no telling
where we will get if we keep struggling along in this area. Those
are important things. I do not even belittle that. But it has all been
taken out of context, every bit of it.
I do not think you had an appropriate time to respond on the
issue of privacy, and especially with regard to the Griswold case
and the Skinner case. I guess I want to be sure because there was a
line of questioning which I gatheredand I think it was our Chair-
man, and it was a good line of questioningit was, well if you do
not embrace these things through some method, how are we going
to get to that point? How do you protect?
241
I want to ask you if it is fair to say that you believe that privacy
is protected under the Constitution, but that you just do not believe
that there is a general and unspecified right that protects every-
thing including homosexual conduct, incest, whateverand you
mentioned that yesterday. Is that correct?
Judge BORK. That is correct, Senator. I think the fact that I did
not get everything I wanted to say out was my fault because I was
trying to discuss with Senator Biden and others the constitutional
problem. But I think it requires a fuller answer than that and that
is this: No civilized person wants to live in a society without a lot
of privacy in it. And the framers, in fact, of the Constitution pro-
tected privacy in a variety of ways.
The first amendment protects free exercise of religion. The free
speech provision of the first amendment has been held to protect
the privacy of membership lists and a person's associations in order
to make the free speech right effective. The fourth amendment pro-
tects the individual's home and office from unreasonable searches
and seizures, and usually requires a warrant. The fifth amendment
has a right against self-incrimination.
There is much more. There is a lot of privacy in the Constitution.
Griswold, in which we were talking about a Connecticut statute
which was unenforced against any individual except the birth con-
trol clinic, Griswold involved a Connecticut statute which banned
the use of contraceptives. And Justice Douglas entered that opinion
with a rather eloquent statement of how awful it would be to have
the police pounding into the marital bedroom. And it would be
awful, and it would never happen because there is the fourth
amendment.
Nobody ever tried to enforce that statute, but the police simply
could not get into the bedroom without a warrant, and what magis-
trate is going to give the police a warrant to go in to search for
signs of the use of contraceptives? I mean it is a wholly bizarre and
imaginary case.
Now let me say this
The CHAIRMAN. Would the Senator yield at that point just for
clarification?
Senator SIMPSON. Yes, certainly, Mr. Chairman.
The CHAIRMAN. If they had evidence that a crime was being com-
mitted
Judge BORK. HOW are they going to get evidence that a couple is
using contraceptives?
The CHAIRMAN. Wiretap.
Judge BORK. Wiretapping?
The CHAIRMAN. Wiretap.
Judge BORK. YOU mean to say that a magistrate is going to au-
thorize a wiretap to find out if a couple is using contraceptives?
The CHAIRMAN. They could, could they not, under the law?
Judge BORK. Unbelievable, unbelievable.
The CHAIRMAN. I understand that, but under the law, Judge,
could they not haveit was a crime, correct?
Judge BORK. It was a crime on the statute books which was
never prosecuted, never.
The CHAIRMAN. Well, the fact that it was not prosecuted did not
mean it was not a crime, does it?
242
Judge BORK. I have more to say about that, whether it was a

crime or not.
The CHAIRMAN. Let us assume they were drug dealers. There
was evidence that they were involved in some other legal activity,
and there was a wiretap.
Judge BORK. And they hear a discussion of contraceptives?
The CHAIRMAN. Yes.
Judge BORK. Nobody is going to get a warrant for that and no
prosecution is going to be upheld for that. And I would like to go
on to that point because
Senator SIMPSON. Judge, let me come back to another one here.
Judge BORK. Well, okay.
Senator SIMPSON. GO ahead. I want to hear that.
Judge BORK. I want to say that you really could not enforce that
thing, and the privacy was not the issue in that case. It was the use
of contraceptives, and it is a little hard to locate something about
contraceptives in the Constitution.
But be that as it may, let me illustrate my objection to what is
generalized right of privacy. Suppose a Senator introduced a bill
which said every man and woman and child in this country has a
right of privacy, period. I do not think that bill would go anywhere
until he had to tell everybody exactly what the right of privacy
protected. Did it protect incest? Did it protect beating your wife in
private? Did it protect price-fixing in private?
No Congress would ever pass a bill like here, here is a general-
ized right of privacy; make of it what you will. No court would
uphold such a statute because it would be void for vagueness.
Now the Supreme Court or Justice Douglas in effect did the
same thing with the Constitution. Nobody knows what that thing
means. But you have to define it; you have to define it. And the
court has not given it definition. That is my only point.
Now the only reason that Connecticut statute stayed on the stat-
ute bookit was an old, old statute, dating back from the days
when Connecticut was entirely a Yankee Statethe only reason it
stayed on the statute book was that it was not enforced. If anybody
had tried to enforce that against a married couple, he would have
been out of office instantly and the law would have been repealed.
Furthermore, if the prosecutor brought such a case, I do not
think any court would uphold a conviction, assuming that you
could get a conviction. That law had not been enforced for so
longit is an utterly antique statute; I do not think it was ever
enforcedI think you would have a great argument of no fair
warning, or sometimes that lawyers calland I hate to use a word
like thisdesuetude, meaning it is just so out of date it has gone
into limbo.
So no prosecutor is going to bring that prosecution. If he did, the
law would disappear and furthermore no court would uphold the
prosecution. That is the fact. That law never went anywhere. My
objectionI think the law was an utterly silly law, but my objec-
tion is simply to the undefined nature of what the court did there.
And I have tried to illustrate that for you by asking you whether
you would vote for a statute that said nothing more than that ev-
243
erybody has a right of privacy, and the court shall enforce it. I do
not think you would.
Senator SIMPSON. Judge Bork, one thing that kind of surprised
me yesterday and yet it did not is that you really described that
case as being some kind of a law school exercise, a professorial
dream, a mess-around kind of a case. Is that right?
Judge BORK. Yes, it was. Some professers found that law in the
books and tried to frame a case to challenge it on constitutional
grounds. And, as I say, they had trouble getting anybody arrested,
and the only person who could get arrested was a doctor who ad-
vertised that he was giving birth control information, contraceptive
information, and I do not know if they prosecuted him or fined him
under the aiding and abetting clause of the Code, and I think both
sides regarded it as an interesting test case. The whole case was
practically an academic exercise.
Senator SIMPSON. Judge Black and Judge Stewart both dissented.
Judge BORK. They did indeed, and Justice Harlan refused to go
along with the right of privacy. He had reasons of his own. He
used, I think, the concept of ordered liberty.
Senator SIMPSON. It has been obviously suggestedMr. Chair-
man, I have what, about 8 or 9 minutes or something like that?
The CHAIRMAN. At least that much.
Senator SIMPSON. Obviously expressed again and again that you
simply are a captive of the majority, that you do not listen to any
cry of the minority, whether in race or position or ideas, that you
have run roughshod over specific constitutional rights guaranteed
by the minority. And yet you said yesterday you are a true believer
in the Bill of Rights. I cannot believe the question was really
asked, but it was. And you were asked about your position on the
Bill of Rights. You said it guaranteed freedom of speech. I recall
that.
Your decision in the Lebron case, which I read, the posters about
the jellybean empire or whatever it was, and you said that was a
perfectly appropriate expression. I think that gentleman is back
hanging his posters today, and they are new and even richer today,
and nothing wrong with that. I see they did give him until October
15 to display and then they are going to pull them down.
You protected him on that, did you not?
Judge BORK. I did indeed.
Senator SIMPSON. Why?
Judge BORK. Because the poster he was putting up was political
commentary. Only political commentary, only misleading political
commentary was banned. I mean there was no occasion to get in
any category of speech other than political speech in this case.
It was political commentary, and on alternative grounds, one of
them was, I did not think an agency of government should have a
right to exercise a prior restraint on speech and I so held.
Senator SIMPSON. YOU were holding in under those same circum-
stances very likely.
Judge BORK. Of course.
Senator SIMPSON. We talked about religion and the Judge has
left, but I thought Judge Heflin's remarks about religion were
superb yesterday and what he said about your religious beliefs and
244
it was crisply clear, like he is, about what that line of questioning
and what that gains, which is nothing.
Judge BORK. I do not know. Is Judge Heflin, Senator Heflin going
to question me about that?
Senator SIMPSON. I do not think so. He cautioned us all not to
spend much time asking about that.
Judge BORK. Well, let me say one thingI do not want to go into
my religious beliefsbut the report in a national magazine that I
was an agnostic arose from the following conversation, and the re-
porter agrees that it arose from the following conversation. He said
"You are not terribly religious, are you?" And I said, "Not in the
sense that you mean." That is it. He went, bang, he is an agnostic,
and I later denied that I was an agnostic in the New York Times
when I got a chance to.
I took him to be talking about great piety and regular church at-
tendance, and that is what I meant in not in the sense that you
mean. But agnostic does not come out of that conversation in any
way, and I am not an agnostic. But that is as much as I think I
should say about it. It is only the fact that it is on public record
that leads me to deny it, I mean it is in a publication.
Senator SIMPSON. Well, that word was never used?
Judge BORK. NO.
Senator SIMPSON. All of us here on that Panel know how that
goes.
Let me ask you this: If the government were to prohibit me from
exercising my right of privacy to educate my children in a religious
tenetand there are people in the United States who feel very
strongly about that, every more strongly than I in factit is con-
ceivable that a Judge could invalidate such a prohibition through
an interpretation of the Constitution, is that not correct?
Judge BORK. That is correct. You mean if the government tried
to say that you could not educate your children in your religion?
Senator SIMPSON. That is correct.
Judge BORK. There is not a ghost of a chance that it would stand
up under the first amendment.
Senator SIMPSON. That is an important protection in your mind
under the Constitution.
Judge BORK. It is a crucial protection.
Senator SIMPSON. And, as I say, there seems to be a bit of a gath-
ering force out in the country or at least there was several years
ago in various States. I remember a single case, I believe it was in
the State of Nebraska.
So do I gather from what you have said in answers and responses
yesterday that you believe that privacy is indeed protected by the
Constitution in the fourth amendment, in the free exercise of reli-
gion clause and the like?
Judge BORK. Oh, yes. There are several crucial protections of pri-
vacy in the Bill of Rights. The framers were very concerned about
privacy because they had been subjected to a very intrusive British
Government, and they were very concerned that privacy be pro-
tected against the new national government, privacy in the aspects
that they wrote into the Constitution.
Senator SIMPSON. And just finally on the issue of Skinner v.
Oklahoma, which was a rather extraordinary case on the steriliza-
245
tion of criminals. The equal protection clause, does it not protect

guarantees of protection from invidious discrimination?
Judge BORK. Senator, it does, but I think that the most that I
said in criticism in this article about Skinner v. Oklahoma was that
the classification distinction made by the court could not be
squared with the other classification distinctions the court had
made. If I can find the articlesI usually cannot when it is crucial.
I really would not buy the way the Supreme Court there went
about it, but I think it is clearpeople who have looked at it more
than I have say it is clear that that statute had racial animus in it,
and it struck at, in effect, crimes that at that time were more
likely to be committed by poor blacks than by middle-class white-
collar whites. And on that ground the statute would be unconstitu-
tional.
Senator SIMPSON. Without question.
Judge BORK. Without question. But I should say this, you know,
the Supreme Court has never said that sterilization under some
circumstances is unconstitutional. I am not saying that that is a
good thing they have never said it. I just want to point out that
they have never said that. In fact, they have upheld sterilization
programs. Justice Holmes did in a famous opinion.
Senator SIMPSON. What was that opinion.
Judge BORK. That was Buck v. Bell, and I think it was a terrible
opinion. That was a case in which they provided
Senator SIMPSON. Who wrote the majority opinion?
Judge BORK. Holmes, Oliver Wendell Holmes. They provided for
sterilization of folks who were mentally retarded, I think after one
or two generations, and Holmes dismissed the equal protection ar-
gument as the usual last resort of the constitutional argument and
wrote the infamous lineI like Holmes but this is not one of his
better days"three generations of imbeciles are enough."
Senator SIMPSON. Justice Holmes said that?
Judge BORK. Justice Holmes said that.
Senator SIMPSON. I think we ought to get him back here.
Judge BORK. Yes. [Laughter.]
I think considering the alternative, he might be glad to come
back and do this.
Senator SIMPSON. Mr. Chairman, I thank you, and I do want to
add, however, I would like entered in the recordand I will con-
clude my round, and you have been courteousbut it seems to me
so far that the extremism so far in this case and the extremist
views and the philosophy of Judge Bork, that the extremism is in
the rhetoric of the opponents of Judge Bork. That is where it is to
this point, and the stridency of that.
I am not talking about the panel. I am talking about newspaper
ads and all this stuff, and television ads, and we have and will
have an opportunity to pursue this to find that we have a, quote,
"conservative judge" who exercises judicial restraint, who tries to
leave social policy decisions to the people and their elected repre-
sentatives where the Constitution does not clearly speak, you are
that sort of judge.
And I want to enter into the record, Mr. Chairman, a thoughtful
piece in this morning's Washington Post of Lloyd Cutler, counsel
emeritus, as I call him, to Presidents, with a case-by-case illustra-
246
tion that Judge Bork's criticisms of the Supreme Court decisions

which we have been discussing for the past two days were in the
main shared by the, quote, "moderate members of our contempo-
rary Supreme Court".
And I can tell you, do not think what Lloyd Cutler has done has
not been provocative for him, because it is so good and so pungent
and so authentic, what he has been saying, that they have now
tried to drum him out of the corps. And that is why he has always
been a superb man and will always be.
So I would like that statement, "Judge Bork is called Judge
Bork, well within the mainstream", unquote, be part of the hearing
record. And I thank you very much.
The CHAIRMAN. Without objection.
[Article follows:]
247
Liord IV. Cutler THE WASHINGTON POST

* ' Sept. 16, 1987
Judge Bork:
Well Within the Mainstream
The book aganat Robert Bork to that he to
cial philosophy. T o l o o t * the "mainstream" for

us, ths bookmakers cite such recent and cur-
rent paragons as Justices Hugo Black, John-
Hariaa. Patter Stewart. Byron Whits, Lewis-
Powef and John Paul Stevens, They are por-
trayed aa conservative moderates, at contrast
to Bork the ideologue of ths extreme right.
But there to something wrong with thie pic-
ture. It to at odda with the recorded views of
these dwrimjnarwd juaacea t i n i v a f t f .
Let's start with Justice Stevens. He stated
pubiidy thai , what be bad already ex-
pressed prmtety at the request of ths Ameri-
can Bar Asaociatioo's Judicial 5flw tiihi Com-
mittee, namely, that he welcomes Judge) jporx s
iwminatinn Stevens went on to say, after quot-
ing frost one of Bork'a opinions, that Bark's In Rtyndit a Sim*, tfae
judicial phiiaaooby "to consistent with ths phios- apportionment caae, the itinwntan a d a M
opby you will find in opinions by Justics Stewart Black and Stewart.
and Juatice Powell and some of the ttenga that I In R**ntt a AsM the ontvarssty radaJ
hsve written." This was hardly an off-the-aat quota case, the fear jueticea who read Tide V I
remark. Ourag Stereos' yean oa the coart bs of the CM Rights Act to exclude rase aa aa
haa reviewed many Bork "TWVTM and bsard taea gdaaassoos factor aiduded Stevaae aad Sfeswart.
i r p many tovtrnment casea aa sottator gea- Four years earner. Justice Wffltaa 0 . Dougiaa
end. It cannot be squared with the extravagant (who reared before Bamkt) bad eopteaaed the
chanctenxations of Boric as a throwback to the identical view at Difmntt a OtitgatM. Two
era of Simon Legree and Dred Scott. yean totar. Stewart reiterated the asms post*
There a strong judicial evtitaoce to support ban in FwUilam a KlutuidL
Stevens' view. Canada- thto hat of ths modarata b Rmtaam a M*0*% the state actksi caar
f-*' so ngbdy admirsd by Bork'a present aivalidtfsaj a provanaa of the CaMoraa OswtHh
opponents, who dneentoa frott the very Suprssas DOB gusnsassng ths vesdoss lo see property, tos
Court opaacna that Bork to now being attacsad, antars nchated Bhok, Harian snd Stewart.
toAUt* a Wright the Supreme Court, with
^^M^H^M^MH_______ Powef and Whatsj conenmng, ated Judys
Bork'a i
"His views were and are v_

widely shared by justices mas^r^Sartop-k-k.
* , * * mtr, senkiog down state court (niweamsat of
and academics who are

in the moderate center."
m
Tbere are afewinstance-, of coursa. when
fcrbavi^crJtk_adkl-<--salewpct_Maar. l\mk'i m titoiaa iiHspaa ia"1is.ssaai foist nfaa
For ths Most part, Borytcritidat support what ions wars not kaasd sttsr bf < *
tnflM flKnKSbt |U-O0M M M 0 CoHTOHMOClk tO^ JMCKM Of OJT H0 ACHfl-C ONG-QUNa. OMt M
la Htrpar a Vi#ris* the oof tax caae, the to moat ofthehattqahefensenticed. Waviswa
diistnwri induded Black. Hariaa and Stewart. wars ri a n widalr abarsd bf justkaa aad
la GritmU a C*mnmrhcut ths coatrsceptiva acadenaca who are ia ths BMderats oaasar of a
right-ofpnvacy caaa, the diaswitrra induded judidai spactram, not the extreme right.
Black and Stewart. Judge Bark's views about these caste cannot
In ft* . Wad*, which expanded the Cnwaatt1 reaaonahty be daaaed as outside the inaaatinaia
precedent to cover some abortions, the diaaent- by the seme opponents who put theaa mndarata
e n included White. Stewart, who wrote a con- justcea a_de the a a a t n a s . Wlt Judgs Bork
cumng opaMOtt in Rot. said he jotoed the nuuoo- m by no means the aacror knags of these dtoba*
ty only becauae be bowed to the iMjonty guwhed juatxaa (who are by no means the narror
pieceoaot set over his dissent in GntwU image of one snotherX neither to ha thaar exact
seven years earner. .. opposste. Whether or not one agrees with las or
la Kttwmtmck a hhtf*. the Puerto Rico then- va oa particular cases, they are a l waf
votMig ngnts caaa, the liiiatnfen wduaed Hariin withn the nMnstnaam.
snd Stewart, Powef. who was not appoaxl until _-_____________-_____.
several yean atfar. ottxmd the khrgan tMjon- TW writ*, a Wukimgtom attmrmty, mm Whitt
tYtnoornkt mOtf^Rmmt-UmittdStaft. Hmm eammtm mmaar Ptmiatnt Cart*.
248
The CHAIRMAN. Senator DeConcini.

Senator DECONCINI. Mr. Chairman, thank you.
Judge Bork, just to go back not at great length on the privacy
issue because I have a number of questions that I want to ask. But
you raised something there on the enforceability or non-enforce-
ability of the statute in Connecticut vis-a-vis the Griswold decision.
In the Bowers v. Hardwick, Georgia case, dealing with sodomy,
that is an old statute that was on the books. I do not know. I be-
lieve that it was 60 years or more that it had ever been in force,
but in fact somebody enforced that statute, did they not?
Judge BORK. I do not think so, Senator. The policeman was in the
house because of a traffic violation, as I recall. Is that correct?
Senator DECONCINI. He was in the house. That is correct. He was
in the house
Judge BORK. He observedpardon me.
Senator DECONCINI. He was in the house legally.
Judge BORK. Yes. He observed homosexual conduct and I guess
made an arrest, but that ended it. There was no prosecution. The
case arose because homosexuals sued to have the
Senator DECONCINI. Yes. But is not making an arrest enforcing a
statute?
Judge BORK. That is true. That is true. He made an arrest.
Senator DECONCINI. What bothered me is this generalization
that, well, because it would never be enforced or had been is that it
makes no sense. To me that is making a judgment for the legisla-
tive body to make. If they want to pass a bill and if the prosecutor
or the justice does not want to enforce it, should a judge say
should they weigh that, the fact that it has never been enforced?
Judge BORK. I think they have to in terms of fair warning. There
are all kinds of statutes. You know, I am told in some States until
recently there are still statutes that you could not drive a car with-
out somebody walking in front of you swinging a lantern. If some-
body suddenly popped out onto the freeway and enforced that,
nobody is going to uphold that law.
Senator DECONCINI. But we are talking here about a little bit dif-
ferent use or I believe a constitutional right of privacy. Let me just
pursue with you.
You said yesterday, relating to a question that Senator Hatch
asked you regarding Roe v. Wade and the ninth amendment, its ap-
plicationand correct me pleaseyou said something that nobody
really knows what that amendment means. Is that correct?
Judge BORK. I do not know. I know of only one historical piece.
There may be more. You know, this is not a subject I have re-
searched at great length, but most people say they do not know
what it means.
Senator DECONCINI. DO you know what it means?
Judge BORK. It could beyou know, I can speculate.
Senator DECONCINI. DO you have an opinion on the ninth amend-
ment?
Judge BORK. The most sensible conclusion I heard was the one
offered in the Virginia Law Review, which was that the enumera-
tion, as the ninth amendment says
249
Senator DECONCINI. Enumeration in the Constitution of certain
rights shall not be construed to deny or disparage others retained
by the people.
Judge BORK. That is right, Senator. And I think the ninth
amendment therefore may be a direct counterpart to the 10th
amendment. The 10th amendment says, in effect, that if the
powers are not delegated to the United States, it is reserved to the
States or to the people.
And I think the ninth amendment says that, like powers, the
enumeration of rights shall not be construed to deny or disparage
rights retained by the people in their State Constitutions. That is
the best I can do with it.
Senator DECONCINI. Yes. You feel that it only applies to their
State constitutional rights.
Judge BORK. Senator, if anybody shows me historical evidence
about what they meant, I would be delighted to do it. I just do not
know.
Senator DECONCINI. I do not have any historical evidence. What I
want to ask you is purely hypothetical, Judge. Do you think it is
unconstitutional, in your judgment, for the Supreme Court to con-
sider a right that is not enumerated in the Constitution
Judge BORK. Well, no.
Senator DECONCINI. to be found under article IX?
Judge BORK. There are two parts to that. First, there are some
rights that are not enumerated but are found because of the struc-
ture of the Constitution and government. That is fine with me. I
mean that is a legitimate mode of constitutional analysis.
I do not think you can use the ninth amendment unless you
know something of what it means. For example, if you had an
amendment that says "Congress shall make no" and then there is
an ink blot and you cannot read the rest of it and that is the only
copy you have, I do not think the court can make up what might
be under the ink blot if you cannot read it.
Senator DECONCINI. Let me ask you this question: If you had to
speculate, what do you think Madison or some of the framers had
in mind as to unenumerated rights?
Judge BORK. They might have had in mindthis is pure specula-
tion, which I do not think is
Senator DECONCINI. I understand. I said this is all hypothetical.
Judge BORK. All right. They might have had in mind what I just
said about the enumeration of these does not entitle judges to over-
ride the state constitutional rights. They also might have had in
mind perhaps a fixed category of what they regarded as natural
rights, although if they did have in mind a category of natural
rights, I am a little surprised they did not spell it out and put it
into the Constitution, because they specified all the other rights.
There is no evidence that I know of that this was to be a dynam-
ic category of rights, that is that under the ninth amendment the
court was free to make up more Bill of Rights. There is no evidence
of that at all that I know of. And I think that had that been their
objective, they could have spelled it out a lot better, and a lot of
the constitutional debates we had right after the Constitution was
formed, and John Marshall began applying the Constitution and so
250
forth, would have been irrelevant debates because the court is just
entitled to make up constitutional rights.
Senator DECONCINI. Would you say that in your judgment it
would be unconstitutional for the Supreme Court to find a right
we will not say what it is, but Right A
Judge BORK. If a Supreme Court makes
Senator DECONCINI [continuing]. Because it is not enumerated
here.
Judge BORK. If the Supreme Court makes up a new right for
which there is not historical evidence, then I think it has exceeded
its powers under the Constitution.
Senator DECONCINI. That is vis-a-vis your criticism of the Gris-
wold case.
Judge BORK. Yes, insofar as they did not explain adequately
where it came from and what it was.
Senator DECONCINI. And if we follow that line of thinking, how
would you address the Griswold case or the statute? You indicated
that you thought that it was a bad statute and the results of that
case you agreed with, I think you said yesterday, but not
Judge BORK. I agreed with it politically.
Senator DECONCINI [continuing]. The structure of the decision.
How would you as a Supreme Court judge address a similar case
dealing with an area that you now feel is not enumerated or a con-
stitutionally right set out? Where would you find that right if you
decided that you felt you wanted to come to that same conclusion
as you indicated on the Griswold decision? You wanted that conclu-
sion
Judge BORK. NO. I wanted that conclusion as a political matter.
You know, I make a sharp distinction between a judicial function
and a legislative function. If I were a legislator, I would vote
against that statute instantly.
Senator DECONCINI. Right.
Judge BORK. AS a judge, I would have to be persuaded that there
was something in the Constitution.
Senator DECONCINI. DO you see anything else in the Constitu-
tion?
Judge BORK. I have not gone through this exercise, Senator, so I
am just speculating. I suppose the most likely form of attack might
be the equal protection attack. I do not know.
The CHAIRMAN. Equal protection you say, Judge?
Senator DECONCINI. The equal protection clause.
Senator LEAHY. I just did not hear the answer.
Senator DECONCINI. Judge, going to the equal protection clause,
last week President Reagan said that your critics had been engag-
ing in highly charged rhetoric that is "irrational and totally un-
justified" were his words, end of quote. Many of your other sup-
porters have said that they cannot understand what your critics
could possibly be concerned about. And to your creditand I com-
pliment you for thisI have not read of you saying that you do not
understand why people are concerned about you. You do under-
stand apparently.
Judge BORK. I have not commented upon parties to this dispute
at all. Okay?
251
Senator DECONCINI. Well, at least I did not read anything. So I
am correct.
Judge BORK. Yes.
Senator DECONCINI. NOW let me pose this hypothetical to you. If
you were a black man, do you not believe that you would be grave-
ly concerned to read comments that you, Judge Bork, have made
about public accommodation laws, which you said, quote, "unsur-
passed ugliness", that laws to ban literacy tests
Judge BORK. DO you have, Senator, the page that is on and that
article?
Senator DECONCINI. That is in the New Republic, 1963. I do not
have the page. I am sorry. I will have to ask someone to look it up
for you. That laws to ban literacy tests which were used in the
South to deny blacks their voting rights were, quote, "very bad".
Judge BORK. Where is this. Senator?
Senator DECONCINI. That is in hearings on the Human Life Bill,
the Judiciary Committee, 99th Congress in 1982.
Judge BORK. Can we take these up
Senator DECONCINI. Let me just finish these and then you can
address them one by one, if I may.
The laws to ban literacy tests which were used in the South to
deny blacks their voting rights were, quote, "very bad, indeed per-
nicious constitutional laws", end of quote; that decisions to outlaw
poll taxes were, quote, "wrongly decided", unquote; that you dis-
agreed with the decision revoking restrictive covenants, and that
you criticized the Supreme Court decision invalidating a California
referendum overturning open housing laws.
Now you may well have legitimate reasons, and I am going to
give you ample time because I know the Chairman will insist on
for you to answer this. You might be able to persuade many people
that you were right when you made them, but do you not think
you have to agree that those kind of statements are ample in
nature to raise a great deal of concern about, quote, "where you
are coming from on these kinds of issues"?
Judge BORK. If those statements were all that people had before
them, they should certainly raise a great deal of concern. I would
like to deal with each of them.
Senator DECONCINI. Please do.
Judge BORK. But before that, I should say, that if I were a black
man who heard those statements but knew my record as Solicitor
General and as a judge, I do not think I would be concerned be-
cause it is a good civil rights' record.
Now let us go back. What is the firstyou mean the New Repub-
lic article, Senator.
Senator DECONCINI. Yes, sir, regarding the public accommoda-
tion.
Judge BORK. What I said was I was discussing the principle. It
starts off by saying "of the ugliness of racial discrimination there
need be no argument". Then I went on to talk about this bill which
forced association which worried me at the time, it does not worry
me now, not at all; it was a good idea. I said the principle of such
legislation is that if I find your behavior ugly by my standards,
moral or aesthetic, and if you prove stubborn about adopting my
view of the situation, I am justified in having the State coerce you
252
into more righteous paths. That is what I said was the principle of
unsurpassed ugliness. It was the principle I thought was underly-
ing this thing, which was a principle that can apply much more
broadly.
Senator DECONCINI. That is still your view?
Judge BORK. No, it is not my view. This was based upon, as I
said, a time when I was libertarian and I thought the presumption
was always against State regulation of individual conduct.
Senator DECONCINI. That is no longer your view?
Judge BORK. NO, no. And I was insisting upon a principle of coer-
cion that could be stated and would not have this broad sweep.
I no longer think that legislation can be rested always upon a
principle. It is more of a judgment of the individual situation that
you cure.
Senator DECONCINI. Judge Bork, when did you cease being a lib-
ertarian?
Judge BORK. About 1970. I wasyou will see traces of it in an
article I wrote. At the time, I was trying to get my libertarian prin-
ciples into the Constitution, much in the way that people get priva-
cy into the Constitution. And I wrote an article that appears in
Fortune Magazine for December of 1968, I believe, called the "Su-
preme Court Needs a New Philosophy". You may think that is a
theme I harp upon, but
Senator DECONCINI. Did that come upon you over a period of
time?
Judge BORK. NO, no. I am just telling you this was the last time I
expressed this libertarian standpoint.
Senator DECONCINI. And after that you changed.
Judge BORK. Yes. Let me tell you about that, Senator, if I may. I
was in London that year and Fortune called meI had written for
them beforeand asked me to write something about the Supreme
Court. And I wrote about two models of how the Supreme Court
might go about its work. And one model was to take the lead of
Griswold, only instead of calling it privacy, call it freedom, which
it is, and construct the philosophy that lines up a more general
principle of freedom that the individual amendments are simply il-
lustrations of.
That sounded like a great idea to me then, and when I came
back from London after a sabbatical year, that is when I talked, of
course, with Alex Bickel and found the course going flat, and I
said, "What is wrong with this course? Why are not the students
excited?" And he said, "You are not saying those crazy things any-
more", by which he meant those crazy libertarian things I used to
say. And that is when I first realized I was moving away.
And by 1971 I had abandoned this attempt and said you have got
to go to the intents of the people who made the Constitution.
Senator DECONCINI. What about the reference here to the Voting
Rights Act as very bad?
Judge BORK. Where is this?
Senator DECONCINI. That is out of the hearings on
Judge BORK. I have not got that before me. Was I discussing
Katzenbach v. Morgan?
Senator DECONCINI. Excuse me. The ban of literacy test, excuse
me, and it is the Katzenbach
253
Judge BORK. Senator, I have always said, and it is quite obvious,

that a literacy test used to deny any racial group or ethnic group
or any other group access to the polls is bad under the Constitu-
tion, under the 14th amendment. I was not saying that the banning
of literacy tests was bad by the courts.
Senator DECONCINI. That is how I read it.
Judge BORK. Well, Senator
Senator DECONCINI. And that is fair enough. I think it is very
important that you clarify it.
Judge BORK. Let me say this: I said here in this testimony that I
agree entirely with the dissent of Justice Harlan joined by Justice
Stewart in Katzenbach v. Morgan. And the reason I agreed with
the dissent was that the majority said that Congress by statute
could change a rule the Supreme Court had laid down. The Su-
preme Court had held that non-discriminatory literacy tests were
constitutional. Congress passed a statute which in certain circum-
stances says they are outlawed. And the Court said the Congress
can define the equal protection clause in some ways.
I thought that was bad constitutional law. I do not think Con-
gress can change the Constitution, which is precisely why I testi-
fied against the Human Rights Bill, which would have changed Roe
v. Wade by statute. And I certainly have never endorsed
Senator DECONCINI. IS that the same reasoning, Judge Bork, that
you opposed the Civil Rights Act?
Judge BORK. NO, no.
Senator DECONCINI. What was the reasoning for that?
Judge BORK. The 1963 article in the New Republic is not a consti-
tutional article. That was simply political philosophy, and it was
very bad political philosophy and, you know, it is 25 years ago. And
I trust
Senator DECONCINI. And I appreciate that. I do not want to be
held for everything that I did 25 years ago either, and I appreciate
that.
Judge BORK. All right. But my views on Katzenbach v. Morgan
have not changed. I do not think that the Congress of the United
States can change the Constitution by statute.
Senator DECONCINI. I have a little problem with that, Judge
Bork.
Let us go on to something else regarding the 14th amendment.
Your view of the 14th amendment, can you give that to me so I
will not paraphrase it incorrectly regarding where you feel it ap-
plies as to racial discrimination or anything else? Just tell me, if
you will
Judge BORK. The equal protection clause applies to all racial dis-
crimination, and I think about the only instance in which I have
seen a court uphold a difference between races was when there was
a race riot in a prison, and the warden separated the races, and
somebody filed a lawsuit to challenge that. And the court said that
is reasonable. If there is a race riot, you can separate the races.
That is the only instance I can recall. Otherwise, it is just about
absolutely unconstitutional to make a racial distinction.
Senator DECONCINI. TO make a racial distinction.
Now your position also is that Congress nor the States can pass
laws defining that. Is that right?
254
Judge BORK. Well, you mean, defining what the substance of pro-
tections of the Constitution means?
Senator DECONCINI. Yes.
Judge BORK. I do not think so, Senator. If they can do that, Mar-
bury v. Madison and the power of judicial review is dead.
Senator DECONCINI. I cannot understand then why the precise
words used in the 14th amendment, which are "deny to any person
within its jurisdiction the equal protection of the laws" creates the
confusion that it does with you. It does not with me.
What words of those words I just read are not precise? If the
plain language of the amendment requires States to equally protect
all within its jurisdiction, why would there ever need to be any
analysis of the legislative history or intent of the Congress when
those words are as precise as this person can read them?
And I am not a student of the Constitution or pretend to be a
law professional of constitutional law. The amendment does not say
that the State cannot enact laws that discriminate. It says it must
equally protect any person. Does this not mean that a State must
enact laws to protect equally all persons? Is that not the rest of
that amendment?
Judge BORK. I think what it means, Senator, is the State either
by statute or by executive action, any way the State can act, may
not deprive people of equal protection of the law. It does not mean
that the State must go out affirmatively and legislate
Senator DECONCINI. But does it not mean it can go out affirma-
tively?
Judge BORK. Sure. A State can affirmatively protect racial
groups and other groups. There is no problem with that.
Senator DECONCINI. But your position is then that to deny any
person within its jurisdiction equal protection of the law does not
apply to other minorities.
Judge BORK. NO, no. I did not say that. We went around this
somewhat yesterday, Senator, and I prefer the position that Justice
Stevens enunciated.
Senator DECONCINI. I do not want Justice Stevens' position. I
want your position.
Judge BORK. Well, that is my position.
Senator DECONCINI. Okay.
Judge BORK. I was just telling you it is in the Cleburne case. The
historical meaning, the core idea, the trouble that caused the 14th
amendment to be adopted was the fear of and the reality of racial
discrimination against former slaves in this country, so ;tnat every
time a court reasons about the 14th amendment, it usually starts
with the paradigm case of racial discrimination.
I objected to when the Supreme Court was using a method of
saying this group, illegitimate children, aliens is in; this group,
somebody else, is out. That seemed to me to be a very funny way to
proceed. It is much better to proceedbecause we have no evidence
that any of those groups were meant to be in or out. It is much
better to proceed under the reasonableness test, which the thing
af sr all says, "nor shall any State deny to any person the equal
protection of the laws". Any person is covered. That means every-
body is covered, men, women, everybody.
255
And the question, when a statute makes a distinction is whether
the State has an adequate interest in it and the distinction is rea-
sonable. Now in a racial case it will almost never be reasonable.
Senator DECONCINI. In a racial case. What about the sex discrim-
ination cases?
Judge BORK. Well, sometimes it will be reasonable and some-
times it will not because I do not
Senator DECONCINI. Where do you find in this amendment that
the reasonable standard is there, that it requires one standard here
for racial and then another standard as you apply it other than
racial?
Judge BORK. Reasonable standard came in, I think, in the last
century under the Supreme Court, and I think, if I may say so,
that is a reasonable way to read this clause because it applies to all
persons.
We know that it is irrational to make a distinction between per-
sons on racial grounds, utterly irrational. We also know that for
some purposes it is rational, reasonable to make a distinction be-
tween the genders, between the sexes.
Senator DECONCINI. Let me tell you
Judge BORK. But not always.
Senator DECONCINI. I will tell you why I am so confused on it. In
a recent interview you were quoted saying that "The role that men
and women should play in society is a highly complex business, and
it changes as our culture changes. What I am saying (10 years ago)
was that it was shift in constitutional methods of government to
have judges deciding all of those enormously sensitive, highly polit-
ical, highly cultural issues", end of quote. That was June 1, 1966,
the Judicial Notice.
Now what troubles me, Judge, is why are the questions concern-
ing sex discrimination any more difficult or any more complex and
undeserving of constitutional, judicial resolution than other ques-
tions routinely subject to the court constitutional analysis, ques-
tions such as the discrimination on the basis of race that we have
discussed here? It leaves me with a big void here thatand I know
that you have tried to explain it and I have paid attention yester-
day, but I did not get it.
Judge BORK. YOU are comparing, I take it, Senator DeConcini,
my
Senator DECONCINI. Yes, that is 1986. I am sorry.
Judge BORK [continuing]. My remarks about the Equal Rights
Amendment with my views of the equal protection clause. Is that
what you are saying?
Senator DECONCINI. Yes. It is in that interview, yes, sir.
Judge BORK. Yes. All right. My objection to the Equal Rights
Amendment was that legislatures would have nothing to say about
these complex cultural matters, and had no chance to express a
judgment. People would go straight to court and challenge any dis-
tinction, and the court would have to write the complete body of
what is allowable, discrimination or whatever it is.
A reasonable basis test allows a little more play in the joints, I
think, for the court to listen to the legislatures and look at the soci-
ety and bring evidence in and so forth. If you want to say that the
Equal Rights Amendment really would enact the same thing as the
256
reasonable basis test, then my objection to the Equal Rights
Amendment drops out.
Senator DECONCINI. What troubles me is that
Judge BORK. But nobody said that, Senator.
Senator DECONCINI [continuing]. You are saying to me, as I un-
derstand, what you are saying to me is that this reasonable test is
something that the court has made up, that you are willing to use,
and I do not see any distinction in that amendment. It seems to me
far greater to say, "Yes, it applies to women, just as it applies to
the races."
Judge BORK. I said that, but it cannot apply just as it does to the
races. It is possible to say
Senator DECONCINI. YOU say it can apply just as it does to the
races.
Judge BORK. It cannot apply
Senator DECONCINI. It cannot.
Judge BORK [continuing]. To gender just as it does to race. It is
possible to say, for example, that there shall be no segregated toilet
facilities anywhere as to race. I do not think anybody wants to say
that as to gender. Differences have to be accommodated. That is
why the difference.
Senator DECONCINI. But is not that a bogus argument? We are
not talking about unisex toilets here. We are talking about
Judge BORK. NO.
Senator DECONCINI [continuing]. Fundamental rights that
women for too, too long have not been provided.
Senator DECONCINI. And we are talking about your interpreta-
tion of whether or not on the Supreme Court you are going to look
towards that equality for women, whether we have the Equal
Rights Amendment or not. And if you have a reasonable standard
that comes into play for women, because I am referring just to
women or for sexlet us just say the womenbut you do not apply
that reasonable standard to racial matters
Judge BORK. I do. Senator, I do. It is exactly the same standard.
Senator DECONCINI. YOU do have the standard?
Judge BORK. Yes, exactly the same standards, a reasonable basis
test, and there is no reasonable basis to segregate the races by
toilet facilities. There is a reasonable basis to segregate the genders
by those facilities. And when I said to you that you cannot treat
gender exactly the same as you do race, all I meant was some dis-
tinctions are reasonable as to gender, such as the one we men-
tioned, some are not reasonable, the same one would not be reason-
able as to race.
Senator DECONCINI. But is it not fair that, you know, as you said
in the Griswold case, nobody is going to enforce that statute? Who
is going to come around that they have to use the same
Judge BORK. I did not say anybody was going to do that, Senator.
I was just explaining to you that
Senator DECONCINI. But is not that carrying it to an extreme,
Judge Bork?
Judge BORK. NO, Senator. All I am saying to you is that the vari-
ous things we would prohibit in the law as to race, not all of those
would be prohibited as to gender. Now, for example, you could not
257
have a national law that said only blacks or only whites will go
into combat. It may beand I do not want to arouse a philosophi-
cal argument here, but it certainly seems likely to me that you
could have a national lawin fact, the Supreme Court has said as
muchsaying that only males will go into combat, and, you know,
there was a case about whether you could have an all-male draft,
and the Supreme Court said you could.
So that is an illustration of the fact that gender in some cases is
treated differently from race.
Senator DECONCINI. Let us turn to sex discrimination cases. You
know, where is the reasonableness in that area? Is that for the
court to decide whether or not eight men and one woman decide
that this is a reasonable front? How do you set that standard?
Judge BORK. I think that is exactly what happens. I mean if you
put that in court, it is either going to be a bench trial or a jury
trialI suppose a bench trialand a series of judges will have to
decide it on the facts whether that isif we are talking about a
title VII casewhether it is a hostile environment case or discrimi-
nation and conditions of employment case.
Senator DECONCINI. And you use a reasonable standard there as
far as the Supreme Court is concerned of whether or not to uphold
the lower court?
Judge BORK. NO, no. That is a statute. And if there is a disparity
in treatment, you have got a violation of the statute.
Senator DECONCINI. But under the 14th amendment you do not
find any reasonableness for sex discrimination case if it were
brought on that basis?
Judge BORK. The statute applies to private employers, and the
14th amendment applies to government action. And I am not quite
sure I understand the questions.
Senator DECONCINI. Well, if you have sex discrimination, an
action brought on sex discrimination charging the 14th amend-
ment, government action towards the person bringing the action,
the reasonable standard applies here?
Judge BORK. Have you got a good reason for the distinction? Is
there some good reason for the distinction being made? Now there
are a million kinds of judgments to be made about that in many
different contexts.
Senator DECONCINI. YOU leave this Senator unsatisfied as to how
this Senator can conclude that you are going to protect the citizens
of this country in interpreting the Constitution on the court as it
relates to sex. And maybe we can go over this some more, Judge
BORK. I am not trying to make a federal case or looking for some
excuse here. I am trying to satisfy myself that you are not exclud-
ing large segments of our population as you clearly do not exclude
large segments of our population on the racial issue. But it seems
to me that there is a question as to how you treat the sexual segre-
gation. And that is a trouble to me, but my time is up.
Judge BORK. Well, let me answer the question nonetheless, Sena-
tor, because I would not like to have that implication left in the
room.
The fact isand I was looking for the materials and I cannot
find them, but I will get themthe fact is that as Solicitor General
258
I argued positions for the protection of women broader than those
that the Supreme Court would accept.
The other fact is that in the gender cases that I have decided as
a Court of Appeals judge, I have decided more of them in favor of a
female claim than I have the other way, I think substantially
more. There is no reason whatsoever in my record to think that I
have any problem protecting women or any other group.
Senator DECONCINI. Well, as Solicitor General, of course, you
know, your client is the government.
Judge BORK. Well, sometimes we filed amicus briefs in cases we
did not have to file them.
Senator DECONCINI. Well, how many, what percentage is that?
Judge BORK. I do not know if I have the figures.
Senator DECONCINI. That is not primarily what the Solicitor
General does, is it?
Judge BORK. Well, we file a lot of amicus briefs.
Senator DECONCINI. Well, is not the main purpose of Solicitor
General to represent the Government? Is not that the primary pur-
pose of that?
Judge BORK. He represents the Government and he also repre-
sents governmental policies if he thinks they are intellectually
sound and respectable.
Senator DECONCINI. I see a difference as to your position as Solic-
itor General enforcing some laws and what your interpretation is
going to be as a judge.
Judge BORK. Well, let me say this, Senator, there is some bearing
because when the Government is suedand the Government is my
client, you are rightif there is any way to defend the Govern-
ment, I will try to defend them.
Senator DECONCINI. Sure.
Judge BORK. But when I file an amicus brief where no client of
mine is involved, I have not the same obligation to find any way to
do it. But beyond that, on my court of appeals recordand these
are not cases whose results are compelled by Supreme Court prece-
dentI have voted more often than not for the female party in the
case.
There is no, if I may say sowith all respect, there is no ground
in my record anywhere to suspect that I would not protect women
as fully as men.
Senator DECONCINI. Well, I am going to have to pursue that a
little bit later, Judge. Thank you.
The CHAIRMAN. Judge, before we move on, I want to make sure I
understood two things. In response to one of the questions, you said
the 14th amendment applies to government action not to private
action?
Judge BORK. Right.
The CHAIRMAN. And the amicus briefs or the cases where you
asked the court to go beyond where it had gone before a Solicitor
General, would you supply those at some point?
Judge BORK. I will. The difficulty is I do not have any books here,
and every time the crucial moment comes I lose the place.
The CHAIRMAN. Look, Judge, I am having trouble finding my
questions. So do you not worry about that?
Judge BORK. NO, I am not.
259
The CHAIRMAN. We will have a couple of hours' break and maybe
you could do that.
And, lastly, you said you heard of no arguments about the ninth
amendment that would lead you to believe it has some applicability
along the lines being discussed, and you cite the Virginia article.
Have you read Patterson's "Forgotten Ninth Amendment"?
Judge BORK. No. The ninth amendment has never been a center
of my concerns.
The CHAIRMAN. I am not suggesting you should have. I just want
to know if you had, because I will not question you on it if you
have not read it.
Judge BORK. And the Supreme Court has never relied upon the
ninth amendment.
The CHAIRMAN. Well, we can talk about that when my time
comes.
Senator Grassley, it is now 12 o'clock. And we will go with Sena-
tor Grassley. I thought you might want a 5-minute break, but
would you rather continue to go, Judge, or would you like a 5-
minute break?
Judge BORK. I would just as soon go and then we can have
The CHAIRMAN. Okay. We will go now
Senator LEAHY. Mr. Chairman, is that going to be the last round
before we break?
The CHAIRMAN. Yes, that will be the last round before we break
rather than start another round because the President is coming
up. So we will break from 12:30 when Senator Grassley finishes,
unless any of my colleagues would rather do it another way, and
then we will come back at 2:30, and we will start with the Senator
from Vermont at that time and then hopefully continue today and
we will see where we go from there.
If there is no objection, that is how I would like to proceed. Is
that agreeable with you, Judge?
Judge BORK. Certainly, Senator.
The CHAIRMAN. Senator Grassley from Iowa.
Senator GRASSLEY. First of all, I do not know whether it makes
much difference if you read the "Forgotten Ninth Amendment" or
not because it was written in 1954 and a lot has developed since.
The CHAIRMAN. I was just curious, Senator. It was not an accusa-
tion. Calm down; it was just a question.
Senator GRASSLEY. Judge Bork, first of all, I want to congratulate
you on your openness to answering questions. It is a breath of fresh
air to have somebody like you before us who is willing to answer
these questions. You are the fourth Supreme Court nominee that I
have had the opportunity to evaluate. I want to express my appre-
ciation for the depth to which you are willing to go in responding
to our questions.
This gets me to my initial questions regarding your views. These
may not seem appropriate, compared to the questions you have
been asked. But you know that there has been a debate raging over
the past 2 months over the Senate's advise and consent role. All
the committee members have weighed in with their views on what
our proper role is. This may be an uncomfortable question, but,
given your preeminence as an interpreter of the Constitution and,
because as a judge, you must decide between two views all the
260
time, I am wondering if I can hear your view on what article II,

section 3 of the Constitution means.
Judge BORK. I think to begin with the obvious meaning is that
you can judge a candidate's intelligence, temperament, integrity,
and so forth, and relevant background. I think it is also clear that
you can judge a candidate's judicial philosophy. But I think it
would be quite wrong to say, "Well, I agree with him but there is
one crucial case that he might decide the wrong way and therefore
I will not confirm him."
I think given the nature of the structure of the nominating proc-
ess and the confirmation process and the structure of the bodies in-
volved, the Senate should assure itself that the candidate's judicial
philosophy is a respectable one and one that is allowable on the
bench in the United States.
Senator GRASSLEY. IS it significant that the power of judicial ap-
pointment is in Article II, the Executive function, rather than in
Article I, the Legislative function?
Judge BORK. I think it is, Senator. I think it means that the
framers were quite worried about the idea that a large legislative
body might engage in nepotism and so forth. Whether they were
right or not, I do not know, but they were worried about it.
And I think it means that the Senate's function is not to pick
candidates with rifle-shot accuracy, that is to say, no, we do not
like those seven people but if you will nominate him or her, we will
confirm." I think the Senate's function is to decide whether some-
body is in a certain range.
Senator GRASSLEY. IS it significant that the framers inserted a
two-thirds approval requirement for advise and consent on treaties
proposed by the President, but made no such vote requirement for
Executive appointments?
Judge BORK. I suppose it is, but I am not sureI have not looked
into that, but I suppose it means that they were more concerned
about foreign entanglements and the kinds of troubles the Presi-
dent might get us into.
Senator GRASSLEY. HOW deferential do you believe the framers
intended the Senate to be toward executive appointments?
Judge BORK. I wish I could say that I thought it was extremely
deferential, but I have no idea how deferential they meant it to be.
Senator GRASSLEY. Judge Bork, when you were a law professor,
you criticized the Supreme Court's reverse discrimination holding
in the Bakke case. Critics charge that this is evidence of your in-
sensitivity to racial minorities. Justice Powell wrote the opinion.
Did any other member of the court join Powell's opinion?
Judge BORK. NO. All eight members of the court went off on dif-
ferent grounds. Nobody agreed with Justice Powell in that case.
And I must say he put the case on first amendment grounds, and I
think nobody was satisfied with that.
Senator GRASSLEY. Well, then there was no majority opinion?
Judge BORK. NO, there was no majority opinion.
Senator GRASSLEY. Judge Bork, 4 years before Bakke, in the De-
Funis case, the Supreme Court was faced with another preferential
admissions program in higher education. Although the court held
the DeFunis case moot, Justice Douglas reached the merits of the
case. He wrote views opposing reliance on racial criteria even for
261
benign purposes, and he insisted that the 14th amendment re-
quired, and I quote, "the consideration of each application in a ra-
cially neutral way".
Is my recap of the DeFunis case accurate?
Judge BORK. As I recall it, Senator, yes.
Senator GRASSLEY. Judge Bork, have your writings as a law pro-
fessor about this case generally followed this view articulated by
perhaps the most liberal Justice of the 20th century?
Judge BORK. Yes, I think generally I have certainly objected to
race. Now, when you get into use of race as a criterion for remedial
purposes, that is a different kind of animal. I do not think I took a
constitutional position, but I was quite worried about the use of
race for a long time asthat is, I used to think if there was a tran-
sition period as we brought a certain racial group into the main-
stream of American life, using race as a criterion might be all
right. But what I was afraid of as a policy matter was that the
preferences would never go away and it would become a perma-
nent feature of American life, causing a lot of resentments and
causing other groups to demand the same preferences.
But I have never really written about the subject at length.
Senator GRASSLEY. Let me ask you a follow-up question on the
self-contradiction of racial quotas. I would like to quote from Pro-
fessor Bickel's. "Morality of Consent" at Page 133, and I quote:
"The lesson of the great decisions of the Supreme Court and the
lesson of contemporary history have been the same for at least a
generation. Discrimination on the basis of race is illegal, immoral,
unconstitutional, inherently wrong, and destructive of democratic
society." Now, this is to be unlearned, and we are told that this is
not a matter of fundamental principle but only a matter of whose
ox is being gored.
Continuing to quote, "Those for whom racial equality was de-
manded are to be more equal than others. Having found support in
the Constitution for equality, they now claim support for inequality
under the same Constitution."
Do you share these views?
Judge BORK. Well, of course, they are more strongly expressed
than I usually write, Senator, as we have learned. But as a policy
matter, any long-run institution of quotas worries me very much.
As a constitutional matter or a statutory matter, I do not think I
should express an opinion because I assume that kind of thing may
be litigated in any court I happen to be on in the future.
And I think I have made it plain enoughwell, I wrote what I
thought about the policy in "Regulation" magazine, so there is no
point in me saying I do not have a policy view. But I think I have
made it plain that my policy views do not determine my statutory
or constitutional views.
Senator GRASSLEY. NOW, I would like to turn to the principle of
judicial restraint, and I want to ask you a question that was put to
Justice Fortas during his confirmation hearings to be Chief Justice
in 1968; and I quote:
"To what extent and under what circumstances do you believe
the Supreme Court should attempt to bring about social, economic,
or political change?"
262
Judge BORK. Is that the question, Senator, to which Mr. Justice

Fortas said, "Zero, absolutely zero"? I seem to remember it.
Senator GRASSLEY. Basically, yes. He said none.
Judge BORK. That requires some qualification. If the social
change is mandated by a principle in the Constitution or in a stat-
ute, then the Court should go ahead and bring about social change.
Brown v. Board of Education brought about enormous social
change, and quite properly.
If the social change is the judge's idea of what would be a nice
social change, then Justice Fortas' answer is correct: Zero.
Senator GRASSLEY. OK. Well, now, Justice Fortas said that. Obvi-
ously, he was very much a judicial activist. What can you do to
convince me, then, that if you take that same point of view, you
really mean it and are going to follow it?
Judge BORK. I do not know how I could. You could look at my
record so far. That is about all I can advise. Otherwise, I really
cannot afford to give you a bond or anything like that so that I
could forfeit it if I become an activist.
Senator GRASSLEY. I think you can sense some of the problems
we deal with as we try to categorize people too much. But each of
us, you know, has some views of the kind of people we like on the
Supreme Court, and obviously I have expressed some satisfaction
with some of your points of view already.
Judge BORK. Well, I guess I can say this, Senator: For 16 years, I
have been saying one thing about the Court's function; that it has
to be guided by the intention of the lawmaker with appropriate re-
spect for precedent. I have been saying that for 16 years in articles,
in speeches, and in my opinions, and I am saying it here. If I got on
the Supreme Court and began to do anything else, I would be a
laughingstock. I would make a fool of myself in history for having
done that. I suppose that is the best guarantee I can give you.
Senator GRASSLEY. Again, on the issue of judicial activism, there
was a recent nominee to the federal court, and he happened to be, I
am sorry to say, put forward by this administration. And this
nominee once wrote in a "Law Day" article about things that "we
ought to be thankful for in our legal system." Among them, he
said, was "lawmaking by the courts," and those are his words.
Here is what he wrote about that, and I quote again.
"There is nothing new about this and nothing truly conservative
about people who decry it. The centuries old tradition of the
common law is that law is changed and new law is made by judges.
They should continue to do so."
Can you give me your thoughts on such a statement? And I trust
that you would disagree with such a demonstration of judicial im-
perialism.
Judge BORK. Which branch of law was he addressing himself to?
Constitutional law as a form of common law or what?
Senator GRASSLEY. Basically, yes.
Judge BORK. Well, I am not quite sure what the gentleman
means, whoever he is. But if he means that the courts are free to
evolve constitutional law and establish principles that are not in
the Constitution, then quite clearly I disagree with him. If he
means that starting from something like the free speech clause of
the first amendment that the courts will, in fact, and must evolve
263
the meaning of that clause in something like a common law devel-

opment, then I agree. But the whole question is whether there is a
basic premise in the Constitution which the judge is working out or
whether there is not. It sounds like he means there is not but they
should go ahead anyway, with which I disagree.
Senator GRASSLEY. I would like to follow up on what is wrong
with judges making law, because I think you just expressed your
view. But there are other points of view on the same issue. There
seems to be at least two; although there are probably many more
arguments advanced why judges ought to be able to make law. One
is that judges are an "elite" of our society, better educated than
the masses, best able to protect society from itself. A second argu-
ment often used is that judges have a duty to protect all those who
are under-represented in the political process.
May I have your analysis of these arguments about judicial impe-
rialism?
Judge BORK. Well, the first argument is one that is very com-
monly made by those who do not believe in original intent but be-
lieve in a judge creating constitutional values by the method of
moral philosophy, say. There are a lot of academics who believe
that. The usual ground for that is that judges are better at matters
of principle than legislators are; that legislators are better at mat-
ters of expediency than judges are.
Senator GRASSLEY. Let me be more definite in what I am trying
to get at here.
Judge BORK. OK.
Senator GRASSLEY. Are any of these arguments persuasive
enough in your mind to allow a judge to make law?
Judge BORK. Absolutely not. That is a much shorter answer than
the one I started to give.
Senator GRASSLEY. Let me ask you this: Do not legislatures do
dumb things sometimes, and are not the courts sometimes the only
institutions in a position to protect society from such laws?
Judge BORK. I am bound to say, Senator, yes, they do dumb
things sometimes. And often those dumb things are unconstitution-
al.
Senator GRASSLEY. That is not a reason for making-up a new
Constitution, is it?
Judge BORK. That is not a reason for making up a new Constitu-
tion, no. There is no clause in the Constitution that says the legis-
latures shall make no dumb law.
Senator GRASSLEY, I want to now ask you about another issue
that has been brought before us. Do you change your mind too
much, or do you have the ability to change your mind at all? Of
course, judges are not robots. They have the ability to rethink their
views over time and change their minds. From that standpoint, ob-
viously, they are similar to Senators because we change our minds
all the time.
So I want to focus on your ability to change your mind on impor-
tant issues. One example I am aware of is your position on the
public accommodations provisions of the 1964 Civil Rights Act. I
think Senator Simpson yesterday reminded us that there are three
members of the Senate who voted against that Act and now have
changed their minds about it as well.
264
What other legal issues can you identify for me where you have
rethought your views and have publicly come to different conclu-
sions?
Judge BORK. Well, in 1968, as I mentioned, I endorsed a version
of lawmaking under the Constitution by the Supreme Court. In
1971, I had become convinced that I was quite wrong, and I pub-
lished the Indiana article, the main thrust of which was that I take
back what I said in "Fortune"; that is wrong, and I will tell you
why it is wrong. And I did.
In the second half of the Indiana article, I said, admittedly as a
speculative, tentative viewand I explained why I took that posi-
tionthat maybe the Constitution protected only explicitly politi-
cal speech. I have explained why I have decided that was wrong.
Indeed, more than wrong; it was an example of a professor doing
what legislatures sometimes dobeing dumb. It was a dumb idea. I
published it. I have dropped that.
The CHAIRMAN. When did you drop that idea?
Judge BORK. Oh, in class right away. I think maybe in my 1982
confirmation hearings I indicated that I had dropped it, and then
somebody wrote an article in the ABA Journal characterizing my
views. It was not an article. It was that browser's page or some-
thing. And I wrote a rather stiff letter about that.
That was a pure professor's exercise. As soon as I was faced with
the counterarguments and the reality, it collapsed. That part of it
collapsed. I still think, I must say, that much of that article is quite
good. I like it.
Senator GRASSLEY. Would you ever see yourself like Justice Stew-
art, who dissented in the Griswold case regarding the right to pri-
vacy issue, and then 7 or 8 years later, he joined in the majority in
Roe v. Wade? Do you see yourself able to make those sorts of
changes?
Judge BORK. Well, I suppose I could if I became convinced, sure,
that I was wrong the first time. I have changed my mind on
cases
Senator GRASSLEY. But he necessarily says he was wrong the first
time. It was a case of the passage of time, and maybe the privacy
argument was carrying greater weight?
Judge BORK. I do not know why he did it exactly. But I have
changed my mind in the same case over there. I have written opin-
ions for a panel, got a petition for rehearing, reheard it, and real-
ized I was wrong and come out the other way. I have done that
two, three, four times.
Senator GRASSLEY. Yesterday, on another issue, Senator Thur-
mond questioned you about the importance of precedent. I would
like to follow up on that, and I want to refer to a statement made
by Justice Rehnquist when he appeared before this committee. I
quote, "A precedent might not be that authoritative if it has stood
for a shorter period of time or if it were the decision of a sharply
divided court."
I want to know if you might agree with that view?
Judge BORK. Well, I think in some part I doyes, in major part I
do. I suppose the passage of time by itself is not important. The
only reason it is important is that if expectations and institutions
265
and laws and so forth have grown up around the decision in that
passage of time. That certainly weighs in favor of not overruling
the decision. In a very short period of time, obviously, things are
unlikely to have occurred.
On the other hand, the Court, I think, tends to lose confidence if
it starts overruling cases that it decided 6 months or 1 year ago
just because the personnel is changed. It is a complex question of
when to overrule, and I do not know that I have a philosophy. I
know that I do not. I know the factors I would consider, some of
them. I have never read a theory of when to overrule and when not
to overrule a precedent that had any firmness to it. People just dis-
cuss various factors.
Senator GRASSLEY. I think you commented well on how long a
precedent has stood. What about on the issue of how sharply divid-
ed the Court might be?
Judge BORK. You mean the first time?
Senator GRASSLEY. Yes, and commenting on what Justice Rehn-
quist said.
Judge BORK. Well, I suppose that would have some weight. On
the first point, Plessy v. Ferguson, which allowed segregation, was
58 years old when it was overruled, and a lot of customs and insti-
tutions had grown up around segregation. So that is not a disposi-
tive point. I guess Plessy was a sharply divided Court. I cannot
recall right now.
But I would think that a sharp division in the Court would
lessen the weight of the precedent somewhat, but not dispositively.
Senator GRASSLEY. I think you have commented on that. I want
to go on to another point. You are probably tired of having us ask
questions about the Griswold case, but probably much needs to be
said. In Griswold, Justice Black, in dissent, wrote that the ninth
amendment was passed to assure the people that the Constitution
was intended to limit the federal government to the powers ex-
pressly granted to it, or by implication necessary for it to operate.
Yesterday, Senator Thurmond asked you about the purpose of the
ninth amendment.
Let me ask you this: In more than 150 years between enactment
of the ninth amendment and the Griswold case, had the Supreme
Court ever used the ninth amendment as a weapon of federal
power to prevent State legislatures from passing laws they consid-
ered necessary?
Judge BORK. I believe the Court had never, and I believe the
Court to this day has never done so. I think only a concurrence by
Justice Goldberg really relied upon the ninth amendment in the
Griswold case. It has just never been an amendment that the Court
has ever found to have much force, just as they have not found the
10th amendment to have much force.
Senator GRASSLEY. SO then the Griswold case was a rather radi-
cal decision in terms of the history of Supreme Court jurispru-
dence?
Judge BORK. Oh, the Griswold case was an enormous innovation,
yes. It was a radical departure from what they had been doing.
Senator GRASSLEY. I have a question I want to ask about the 10th
amendment. The 10th amendment states, as we all know, "The
powers not delegated to the United States by the Constitution nor
266
prohibited by it to the States are reserved to the States respectively

and to the people."
Now, everybody is going to agree that that is a worthy amend-
ment. However, what was intended to act as an obstacle to expand-
ed federal authority has become, in the words of the Supreme
Court, only a "truism".
What does the 10th amendment mean to you today?
Judge BORK. Well, I think, Senator, that is unfortunately part of
what I was discussing when I was discussing the fact that the com-
merce clause is expanded in ways that it is simply too late for a
judge to go back and tear up. I think the framers and the ratifiers
had a rather clear idea that these powers were limited and had
kind of clear contours to them. Indeed, the Government operated
that way for a while, for a long while.
But the fact is, beginning with the Civil War up through the
New Deal, the idea that those powers were limited and not really
national in scope got lost. Now, we are operating in a fashion in
which the 10th amendment, I am sorry to say, has almost no prac-
tical significance, and I do not really see how it can much, given
what has happened to the way the Nation has grown.
Senator GRASSLEY. Well, let me ask you this: Would you disagree
with the Supreme Court's 1985 decision in Garcia v. San Antonio?
Judge BORK. Well, I should not speak to that, for two reasons.
One is I do not know, and two is I should not speak to it even if I
did know. The third one is I argued and lost the case that Garcia
overruled as Solicitor General. I tried to uphold a federal regula-
tion of state wages and hours. It was a congressional statute, and I
went in to defend it. I was the first Solicitor General in 40 years to
lose a commerce clause case. Then after I lost it, they went and
overrule it.
I cannot really, I think, speak, Senator Grassley, to what I would
do in a similar case.
Senator GRASSLEY. The question has been raised about you
taking the place of Justice Powell, and his kind of being a swing
vote on the Court and what that might do to the Court. I would
like to ask youand maybe you cannot comment about this
eitherabout Justice Powell's dissent in Garcia. How do you relate
yourself and your philosophy to Justice Powell's dissent?
Judge BORK. The most that I can say, I think, properly, Senator,
is that I have sometimes thoughtand I suggested to the Supreme
Court in the National League of Cities case which Garcia over-
ruledthat there were ways in which the Court could defend feder-
alism as a constitutional value, but those ways are quite limited
now. And exactly what a Court can do, I do not know, and I really
should not express an opinion on Garcia and National League of
Cities out of propriety, and also because I really have not got an
opinion.
Senator GRASSLEY. At least the Garcia case overruled a prece-
dent.
Judge BORK. Oh, yes.
Senator GRASSLEY. I have only 1 or 2 minutes left.
Judge BORK. Garcia overruled a precedent, Senator, and the case
it overruled had just overruled another precedent. So it was going
back and forth pretty fast there.
267
Senator GRASSLEY. I want to ask you a question about the death

penalty, and this will have to be my last question. I do not think
there is any doubt about it. My own personal political philosophy is
that I would agree with you that since the Constitution specifically
refers to the death penalty, it is obviously an available sanction for
heinous crimes. I also note the argument of some that since the
standard of what constitutes cruel and unusual punishment is an
evolving one, there is no place for the death penalty in today's soci-
ety. That is the other argument.
I want to know whether or not you buy the argument that the
eighth amendment standard is an evolving one?
Judge BORK. Well, if it is, Senator, I take it if that statement has
any meaning, it means that society itself, not the judges but the
American people itself have evolved their moral views so that this
thing becomes wrong. If that is true, statutes will reflect that fact,
and the death penalty will be repealed.
If it is not true, then judges ought not to apply their own evolv-
ing morality.
Senator METZENBAUM. Senator Grassley, I think we are all due
on the floor. It is 12:30. If you have additional questions, I do not
know if you have additional time. I am not the timekeeper. But
under the circumstances, Judge Bork, I think the Chair has previ-
ously announced we will reconvene at 2:30. We will look forward to
seeing you at that time.
The CHAIRMAN. I agree with the new Chairman. Thank you very
much.
Judge BORK. Thank you.
at 2:30 p.m., the same day.]
AFTERNOON SESSION
Senator KENNEDY. We will come to order.
Senator Biden has been necessarily detained for a few moments.
To move the hearing along, we will recognize the Senator from
Vermont, Senator Leahy.
Senator LEAHY. Thank you very much, Mr. Chairman. Judge
Bork, welcome back. I do not know if you were attending the cele-
bration of the Constitution. If you were not, I hope you had a
cooler place to spend the noon hour than those who were out there.
Judge Bork, I am interested not so much in one specific case, but
just how your own thinking has evolved over the years and what
we might anticipate, knowing that there are no ironclad guaran-
tees when any judge goes on the bench, nor should there be. But
Senator Simpson had said earlier this morning that you are in a
different position than if a totally unknown person were to come
here who had never written on anything or anything else. And
that is true. You are one of the most prolific writers I have ever
seen. And having spent a good part of the month of August in Ver-
mont reading your writings, there were days that I wished you had
perhaps not been so prolific, and perhaps days that you wish the
same.
Judge BORK. I share that sentiment, Senator.
Senator LEAHY. I am sure you do.
268
But I would hope that no President would send up somebody who

is a total tabula rasa. I would not want any President to show what
would be almost disdain for the Supreme Court to nominate any
man or woman, no matter how brilliant, who had no views ever ex-
pressed in the law. So I think it is good for us and for the country
that if the President is going to send a name up, he sends some-
body with a large body of writings behind him in the field that he
will be deciding.
Let me first go over a few things. You said yesterday, in effect,
that you believe that there is not a constitutional underpinning to
the Supreme Court's opinion striking down a ban on contraception.
You said yesterday that there is no constitutional underpinning to
the Supreme Court's opinion striking down racially restrictive cov-
enants, and that there is no constitutional underpinning to the Su-
preme Court's opinion upholding the principle of one person, one
vote. In fact, you set forth all those views in your Indiana Law
Journal article.
So I would like to ask you, now that we have talked about your
views on those three areas, your views on the Supreme Court's de-
cisions in another areain fact, the main focus of your article, the
area of freedom of speech. I would like to take as my starting
pointand I would like to see the evolution, if there is one, of your
views in this areathe starting point the 1971 Indiana Law Review
which you entitled "Neutral Principles and Some First Amend-
ment Problems."
I am using that for a number of reasons. First, the article is well
written; its arguments are clearly stated. Whether one agrees or
not with the arguments, we know specifically what they are. I
think this is probably cited more often in Law Reviews and by
courts than any of the rest of your articles. In fact, I think it is sort
of in the top 10 or 12 of the articles most cited by any author of
Law Review articles.
I understand it represents the most comprehensive statement of
your philosophy of the Constitution. Am I correct on those points
so far?
Judge BORK. Yes. I wrote primarily in antitrust, and this consti-
tutional law was something I wrote in from time to time.
Senator LEAHY. It is also an area that naturally focuses the at-
tention not only of the Senate, but certainly the country, and your
feelings there, if you were to go on the Supreme Court.
Let us start with the first amendment and the right of free
speech mentioned in the Indiana article. On Page 20 you say, "Con-
stitutional protection should be accorded only to speech that is ex-
plicitly political. There is no basis for judicial intervention to pro-
tect any other form 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, there
should be no constitutional obstruction to laws making criminal
any speech that advocates forcible overthrow of the Government or
the violation of the law." That is basically an accurate statement of
what you have in there.
Judge BORK. Yes. That was my theoretical position at that time.
Senator LEAHY. Then in 1986, March 7, 1986, you spoke at a
forum on the political process and the first amendment before the
269
Federalist Society at Stanford, and you provided the committee
with a transcript. Your Law Review article was mentioned by the
moderator, and you responded as follows: "Dean Ely has been kind
enough to mention my past writing, such as the article in the Indi-
ana Law Review, whichI have been confirmed twice now, and I
have had to eat that article page by page both times." Is that cor-
rect?
Senator LEAHY. NOW, I recognize a tad of levity in your saying
that, but you said about the same thing in an interview on USIA
Worldnet a few months ago this year.
Judge BORK. Well, I do not recall what I said in that interview. I
was talking to a group of German professors whom I could not see.
I forget what I said in that interview.
Senator LEAHY. Well, then, let me not then hold you to that
interview. Let me just go back. What did you mean when you said
earlier with Dean Ely, "I have been confirmed twice, and I have
had to eat that article page by page both times"?
Judge BORK. Well, I am sorry, Senator, that was a bit of hyperbo-
le. But I have eaten selected paragraphs of that article. This is one
right here that you point to that I guess I am going to eat again.
Senator LEAHY. Well, no, I am not
Judge BORK. Well, no, I mean that. I am not just being funny. I
mean it.
Senator LEAHY. Well, we discussed this just a slight bit in my
office, but let me go back just to do sort of the chronology. I do this,
Judge, and if at any point I am taking a part that you feel is at all
out of context, you just say so and I will go back to that.
I would like to follow a chronology, if I might, on how you have
done it. Let us go back to some of the confirmation hearings where
I think you have shown some differing with that article, or at least
where the article has been brought up.
In January 1973, you appeared before this committee as the
nominee for Solicitor General, and Senator Tunney, then of Califor-
nia, read to you an extract from that article in which you said,
"Explicitly political speech does not cover scientific, educational,
commercial or literary expressions as such. A novel may have
impact upon attitudes that affects politics, but it would not for that
reason receive judicial protection."
And Senator Tunney had asked you how you relate that to how
you feel about recent Supreme Court articles, and you said, "The
article you have there is explicitly a tentative and rather theoreti-
cal attempt to deal with the problem. At the end of the article, I
point out that I think these are the conclusions that are required
by the idea of neutral principles, but that I am not sure about the
whole subject."
Was that a retraction of the Indiana article?
Judge BORK. That part of it. That part of it, Senator, yes.
Senator LEAHY. HOW far would you say you have moved from the
Indiana article in that 1973 period?
Judge BORK. About to where the Supreme Court currently is. Let
me say this: The Indiana article was not my starting point on free
speech. I started off on free speech in a very liberal way, protecting
almost everything. This was an attempt to ask in what sense is
86-974 0 - 89 - 11
270
speech different from other human activities which can be regulat-

ed. I took Justice Brandeis' opinion from Whitney v. California, I
believe, in which he said, in effect, there are four functions of
speech: the development of the faculties of the individual, the hap-
piness to be derived from engaging in the activity, and the provi-
sion of a safety valve for society.
And I suggested that those functionsthe development of the
faculties and the happinesswere not different from other human
activities that develop your faculties and make you happy. And the
provision of a safety valve was really a legislative matter, and I
said the discovery and spread of political truth is the only unique
function of speech that it does not share with other human activi-
ties. So I tried to find a bright line.
The bright line, I have become convinced, particularly since sit-
ting on first amendment free speech cases on the court, the bright
line is impossible. To say that somebody has to speak explicitly po-
litically, you know, it is like saying somebody who wants to discuss
a major issue in moral terms is protected only if he says, "And,
therefore, let us pass a law." Now, that is just silly, and the more I
thought about it, the sillier it became.
I do not think a bright line test is available in this area. It is a
spectrum. Furthermore, as another professor pointed out to me, the
realm of politics extends much more through life than it used to,
particularly in part because of the spread of government through-
out life. So that the area of what is political or what affects politics
has expanded enormously, and fiction affects it and so forth and so
on.
Now, I have expanded to where I am about where the current
Supreme Court is, but let me say this: In this same article, I com-
mitted what I think is a logical fallacy. I said that political speech
would have to be protected even if there were no first amendment,
because the framers constructed a republican form of government,
great care about elections, terms of office and so forth and so on.
To have a government like that, without free political speech,
would be an anomaly. It would be nonsense.
But I did not draw the correct conclusion from that. If political
speech would have to be protected anyway, then why did they put
the first amendment in? And why did they speak of freedom of the
press which is not restricted to political speech? I am afraid I have
to conclude that the category has to be much broader than I made
it then. And my decision shows it.
Senator LEAHY. Yet you say in it that while there is no bright
line still, which is a moving away from your basic premise back in
1971, you still say that it has got to be political speech.
Judge BORK. I do not think so, Senator. I say that I think it is
generally true. Harry Kalven, one of the great scholars of the first
amendment at the University of Chicago, and Alexander Meikle-
john, another one of the great scholars of the first amendment, all
start with political speech as the core of the amendment: the idea
that there may be no such thing as seditious libel against the Gov-
ernment, that that is inconsistent with our form of government
and the first amendment. But they move out from there.
Senator LEAHY. Are you saying, then, that there are first amend-
ment rights outside the core of political speech?
271
Judge BORK. Oh, sure. Certainly.
Senator LEAHY. Well, then that differs markedly, does it not,
from your 1971 article?
Judge BORK. Yes.
Senator LEAHY. Well, let us go back, then, to when that came
about. You did not differ markedly in 1973 when you spoke to Sen-
ator Tunney.
Judge BORK. I think there is a difference there. I think I was
saying it spreads out, did I not? I have not got it before me, but I
think you have read it and suggested it was something of a change.
Senator LEAHY. I think it is. You said in your article, let us take
it step by step. In 1971, you say these remarked are intended to be
tentative and exploratory, but then you go on to say, "Yet at this
moment I do not see how I can avoid the conclusions stated."
You then go on, when you are talking with Senator Tunney, you
told him, "It seems to me as you move out from there"speaking
of political speech"that first amendment claims may still exist,
but certainly by the time they reach the area of pornography and
so forth, the claim of first amendment protection become somewhat
tenuous."
Now, that seems to me to say only that there may exist some-
thing beyond the area of political speech. Now, is there not a huge
realm of material that is neither political nor pornographic?
Judge BORK. I hope so, because I do not spend my time reading
either of those two.
Senator LEAHY. Let me go toI am sorry. You were going to say
you do not spend your time reading either one?
Judge BORK. All my reading material is not one or the other, so I
hope there is a category in there.
Senator LEAHY. Well, what about most of the books on the best-
seller list? Are they protected?
Judge BORK. I do not read those, Senator, but I assume they are
protected.
Senator LEAHY. All of them?
Judge BORK. I do not know what is on the bestseller list, and I
certainly have not read them.
Senator LEAHY. Well, what kind of a book might not be?
Judge BORK. Pornography.
Senator LEAHY. What about something that advocated the viola-
tion of laws?
Judge BORK. Well, you know, the Supreme Court has come to the
Brandenburg positionwhich is okay; it is a good positionwhich
is that you cannot be prosecuted for advocating violation of the law
unless lawless action is imminent, or imminent lawless action may
be caused. That is a good test, and it is very unlikely that the pub-
lication of a book advocating violation of the law would produce im-
minent lawless action. It would have to be a very powerful book to
have people
Senator LEAHY. Well, what about speech of a person? What about
Martin Luther King suggesting civil disobedience?
Judge BORK. Well, there are two aspects to that, Senator. One is
that Martin Luther King, as I understand it, was usually advocat-
ing civil disobedience in order to test a law, like the segregation
law, and he did it under a claim of constitutional right.
272
Now, in our system it is often true that the only way one can get
a constitutional ruling on a law is to violate the law, and I think
that was a lot of what Martin Luther King was doing. And if you
do, obviously, test the law and the law is held unconstitutional, I
do not see how the person who advocated breaking it could be held
liable.
Senator LEAHY. Could you have a law that would say that it
would be illegal in the first instance to advocate the violation of
that law?
Judge BORK. I do not think so. It seems to me that if the attempt
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.
Senator LEAHY. What if they advocated the violation of a law to
test its constitutionality and the constitutionality was upheld?
Judge BORK. I really do not know how that would come out. I
really do not know how that would come out.
Senator LEAHY. Let us go back and take a variant of that. You
have a law on the books, let us say, that says that you cannot advo-
cate disobedience of a law, for whatever reason.
Judge BORK. I think the law is unconstitutional because
Senator LEAHY. Even if the law that they then advocate disobey-
ing turns out to be constitutional?
Judge BORK. Well, I do not know. Now, we are into an area I
have never worked in or thought about. But let me say this: If you
are advocating a constitutional testand you are rightI think
that case is clear. If you are not advocating a constitutional test,
then I think the Supreme Court's Brandenburg decision applies.
That says if you are advocating lawless action and it is imminent
that it will occur, the speech is not protected.
Senator LEAHY. Well> I still am having some difficulty knowing
just how your thinking has changed, indeed whether it has, on this
area of free speech. When you were here for the court of appeals
confirmation hearing in January of 1982, Senator Thurmond asked
you about what you said about free speech in the 1971 article. You
answered that you were engaged in an academic exercise, a theo-
retical argument.
Judge BORK. That is exactly what it was.
Senator LEAHY. And that is your feeling today?
Senator LEAHY. That is your feeling today?
Senator LEAHY. Does that mean it did not state your views?
Senator LEAHY. Does that mean the article did not state your
views?
Judge BORK. NO, no. That was a theory I worked out, and it
seemed good to me then. But I recognized that it was pretty far off
current doctrine, and I was not entirely comfortable with it. But it
seemed to me that if you followed this idea of neutral principles,
then you can apply the principle of protection, I thought, only to
that aspect of speech which is different from other human activity.
That is just wrong. But that is what I was doing at the time.
273
Senator LEAHY. Well, that is where I have the problem, Judge,

because you also told Senator Thurmond that "It seems to me that
the application of the concept of neutral principles to the first
amendment reaches the result I reached," referring back to the
1971 article. Now, if you say the 1971 article is wrong, and yet you
are in favor of applying the concept of neutral principles, you say
it reaches the result that you reached.
Does that not reaffirm what you just discarded?
Judge BORK. I do not think so. Oh, oh, you have to apply a princi-
ple that is awfully large to get to that result in 1971. And that
principle would be that all forms of human action which seem in
some sense similar to the judge must be treated similarly. I do not
think that is true. I think, in fact, legislatures and judges have
much narrower principles that they deal with, and they can still be
neutral. What I was dealing with here was rather cosmic, I think.
In any event, Senator, I would suggest that my decisions on the
court of appeals in the first amendment area do not suggest at all a
restricted view of the first amendment.
Senator LEAHY. But your decisions in first amendment areas
have been in areas of political speech, have they not?
Judge BORK. Well, you can call themone of them is a newspa-
per column and I said it was a political subject. It was not a politi-
cal speech. Nobody was advocating doing anything. It was just sort
of a matter of public, political interest. And I also applied the com-
mercial speech doctrine in a case.
Senator LEAHY. YOU applied itI did not hear what you said
you applied it
Judge BORK. I applied the doctrine that protects commercial
speech in a case.
Senator LEAHY. And tell us about that case.
Judge BORK. Well, I think it was a tobacco advertising case. That
is all I can recall about it, Brown and Williamson. That is all I can
recall about it, off-hand, but I can find out about it and let you
know more about it. The fact is, Senator, I simply do not have a
narrow view of the first amendment's protection of speech.
Senator LEAHY. DO you agree then, with the Brandenburg case?
Judge BORK. Yes, I do. I will tell youthe other thing I should
say that moved me somewhat in 1971 about incendiary speech was
that I had just been through, in fact, was still going through the
student revolution at Yale, in which speech advocating law viola-
tion and violence was rampant and we had three episodes of arson
in the law school, one in which they burned books in the library. I
suppose that experience made me perhaps a little less happy than I
would have been otherwise, but I realize that we have to put up
with that and it is constitutionally protected.
Senator LEAHY. I can remember my days as a prosecutor during
some of those same demonstrations at the University of Vermont.
Let's go back to Brandenburg. When you say that you agree with
that decision, that has not always been your position, has it?
Judge BORK. NO, it has not.
Senator LEAHY. Didn't you and Mr. Bickel write a law review ar-
ticle saying that the Brandenburg case was a fundamentally wrong
interpretation of the first amendment?
Judge BORK. The same article here?
274
Senator LEAHY. I am speaking of the article, "The Individual, the

State and the First Amendment," written by you and Alexander
Bickel, in which you say on page 21, "Hess and Brandenburg are
fundamentally wrong interpretations of the First Amendment.
Judge BORK. Yes.
Senator LEAHY. SO, at that point you thought it was wrong but
today you feel it is right?
Judge BORK. Well, there is obviously a question of how much
chance you are willing to take. Now, if you have speech advocating
violence or forcible overthrow of the Government, it is possible to
say we will take a chance and, unless the imminent danger of vio-
lence or something of that sort is here, we will protect the speech
that is also possible to say, and at the time I was thinking about
and had discussed with Bickel, the factrelied upon by Holmes in
his Gitlow opinionthe fact that we tend to think that some of
these folks are insignificant and I suppose in America they are.
But I was thinking about the fact that I knew of another nation
where funny little men in raincoats, wearing mustaches, were
standing on the corner advocating forcible overthrow and nobody
took them seriously and we got a Nazi regime. I do not think that
is a real problem in America, so I think we can afford to have a
wide first amendment protection of the sort that Brandenburg sup-
plies.
Senator LEAHY. Without going into the specific caseI know in
some of this I may have to go back on my next round so I can
follow just where you are going without going into a back pattern
now, at one point you felt the Brandenburg case was a fundamen-
tally wrong interpretation of the first amendment. Today you feel
it is right.
Judge BORK. It is right.
Senator LEAHY. In 1982, at your confirmation hearing, you testi-
fied that you still agreed with the conclusions you reached in the
1971 article. Is that correct?
Judge BORK. I thinkI do not have that here, Senator, but I
think you said that if one follows that application of neutral princi-
ples, which I was then discussing, one comes to that. I think that is
true, if you take neutral principles in the largest, most philosophic
sense. But I do not think we should anymore.
Senator LEAHY. Let's go on to that. Let's move up a year later. In
1983, Jamie Kalven wrote an article which you are obviously well-
familiar with, criticizing your free speech views from 1971, 12 years
before. There has been a lot of discussion about it in the Nation
magazine. After a summary of the article appeared in the ABA
Journal, you wrote a letter to the editor in which you statedI will
summarize, but I think it's an accurate summary"Jamie Kal-
ven's summary of my views is both out of date and seriously mis-
taken. I do not think, for example, that first amendment protec-
tions should apply only to speech that is explicitly political. As a
result of the responses of scholars to my article, I have long since
concluded that many other forms of discourse, such as moral and
scientific debate, are central to a democratic government and de-
serve protection. I have repeatedly stated this position in my class-
es." Is that a pretty accurate summary of the way you reacted to
the Jamie Kalven article?
275
Judge BORK. Yes, Senator, but I should say one thing. I never
read the Jamie Kalven article. I only read the summary of it that
was given in the ABA Journal.
Senator LEAHY. Well, maybe I should say, is that a pretty accu-
rate statement of your views, the way I read it?
Judge BORK. Well, it is. It does not take in all the forms of
speech that would be protected, but it clearly states that it is not
just political speech and I think I go on to say that I do not think
this rationale requires protection of pornography.
The CHAIRMAN. Senator, your time is up, but in order to let the
Judge continue, we will finish this line, but do not go to a new
question, okay. Continue so we do not cut off what the Judge
means.
Senator LEAHY. I am sorry. I thought I started at
The CHAIRMAN. Maybe I am wrong.
Senator LEAHY. NO, they have got the timer. Judge, maybe just
in your
The CHAIRMAN. I beg your pardon. You have five more minutes.
I am sorry. I was mistaken. Five more minutes.
Senator LEAHY. Were you starting to say something? Did we cut
you off?
Judge BORK. I do not recall now. I think we will have to recon-
struct it.
Senator LEAHY. Well, let me go back to another question and ob-
viously, we are going to have another time around and you are
going to have a chance to see the notes and transcripts of this and
if you thought you did not get a chance to answer something fully,
naturally we will go back to it. But, have you ever before made a
statement that you felt Hess and Brandenburg was right?
Judge BORK. Not in public. Hess? Which case is Hess?
Senator LEAHY. Well, let's just stick to Brandenburg. Hess v. In-
diana was a case where there had been an antiwar demonstra-
tor
Judge BORK. Well, this is a case of obscenity.
Senator LEAHY. Who blocked a public street. He had told either
the sheriff or the policeman something, what he thought about
them, and went back to an updated version of Chaucerian lan-
guage, I believe it was.
Judge BORK. I do not know ,
Senator LEAHY. Fortunately, a well-read sheriff who recognized
exactly what he meant.
Judge BORK. That Chaucerian English isI do not know what I
think about that case. I am less willing to say that obscenity in
public is as protected as advocacy of something in private.
Senator LEAHY. I do not mean to mix things up with Hess. I
would rather stick with Brandenburg because I had understood
your view of Brandenburg differently than the way you had ex-
pressed it today.
Judge BORK. Well, I have had a different view of it from time to
time, but I had a view as broad as Brandenburg before I wrote this
article, when I was still teaching that course in constitutional
theory with Bickel, I had an enormously broad view of the amend-
ment.
276
Senator LEAHY. SO is it safe to say then that there has been a
metamorphosis of your views from 1971?
Judge BORK. Oh, yes. My views have evolved and changed. A gen-
tleman named Scott called me this morning from a suburb of Chi-
cago and wanted to give me this and I think since I have been
trying to say this and I cannot say it as well as this quotation, I
would like to read it to you. It is what Benjamin Franklin said
when he voted in the convention for the Constitution, 200 years
ago tomorrow.
He said,
Mr. President, I confess there are several parts of this Constitution which I do
not, at present, approve, but I am not sure that I shall never approve them for
having lived long, I have experienced many instances of being obliged by better in-
formation or fuller consideration to change opinions, even on important subjects
which I once thought right, but found to be otherwise. It is therefore that the older I
grow, the more apt I am to doubt my own judgment and to pay more respect to the
judgment of others.
I have been trying to say that for 2 days now, Senator, but this
gentleman from Chicago called me and gave me that quotation. I
think that says it.
Senator LEAHY. Then, in 1979, when you gave a speech at the
University of Michigan on "The Individual, the State and the first
amendment," you said again that political speech is at the core of
first amendment protection. You said that any version of the first
amendment not built on the political speech core and confined by,
if not to it, will either prove intellectually incoherent or leave
judges free to legislate as they will, both mortal sins and the law.
Judge BORK. Senator, may I have a page citation of that?
Senator LEAHY. Page 9 of thethe quote came from page 9 of the
University of Michigan speech.
Judge BORK. Well, I think that is right and I think that is a
fairly conventional view. I said the political core will, in some
sense, confine the first amendment's protections, but it will not be
confined to politics. That is right. I think that is the way Alexan-
der Meiklejohn looked at it. I think it is the way that Harry
Kalven looked at it. I think it is the way that Alexander Bickel
looked at it. Political speech is the paradigm case. Other kinds of
speech inform our society and make it freer and make it better
able to be efficient and govern itself, and they are all protected.
But, when you get to something, for example, to take the outer
case, when you get to pornography, it is a little hard to see what
that has to do with any connection with the way this society lives
and governs itself.
Senator LEAHY. I am not talking about pornography. There are
an awful lot of cases that do not fall, as we both agree, do not fall
in either the political area or the pornographic area. My last ques-
tion, if I am correct, you said that back in 1979, you felt Branden-
burg was fundamentally wrong but today you feel it is right?
Judge BORK. Yes. I think that what I thought was wrong with
Brandenburg then was that it did not take sufficient account of the
dangers of not one speaker, but many speakers passing the same
message of violent overthrow or violence, no one speech of which
would produce violence or violent overthrow, but taken together,
might produce a very dangerous situation. I now think that this so-
277
ciety is not susceptible to that, even in its worst days, and I also
think that the first amendment says we will take that chance.
Senator LEAHY. Thank you, Mr. Chairman. Judge, just so you
know when we go on the second go-around, I will want to re-visit
this area. I have a number of questions in the area of the first
amendment. Thank you, Mr. Chairman.
The CHAIRMAN. Thank you very much. Senator Specter.
Senator SPECTER. Thank you, Mr. Chairman. Judge Bork, I had
intended to move right into the issue of liberties and freedoms, due
process and equal protection, but I am a little surprised by some of
your responses to Senator Leahy so I will pick up there. When he
asked you about the 1971 Indiana Law Review article, which has
been a pillar of the law attributable to you, you said, as I wrote it
down that you have moved to where the Supreme Court currently
is. If that is so, I think these confirmation hearings may be very
brief indeed. Is it really so that you have moved to "where the Su-
preme Court currently is"?
Judge BORK. On first amendment law. The important part of
that article, from my point of view, is the first half, which argues
that judges must stick to intention, what the framers intended. The
second half is an attempt to apply the idea of neutral principles in
a rather cosmic and artificial fashion to some first amendment
problems. On the first amendment, I am nowyou may give me a
case, Senator, that I do not agree with. I have not been following it
that closely.
But as I understand the Supreme Court's current position on
things like advocacy of civil disobedience and so forth and so on,
yes. Now, on the question of things like obscenity, the Supreme
Court seems to have two positions. One is the one expressed in
Cohen v. California in which an obscenity was on the back of a
jacket a young man wore into the courthouse and the other one is
in theand the Supreme Court said that that was protected by the
first amendment.
The other was in the Pacifica case, where a comedian was saying
the ten forbidden words, as he called them, over the air, on a radio
station and the Supreme Court allowed the Federal Communica-
tions Commission to take away the license or somehow punish the
station. So, in the obscenity area, they seem to have two positions.
I am not sure which is the one. But on the subject of speaking, ad-
vocating political disobedience or civil disobedience or advocating
overthrow, I am about where the Supreme Court is.
Senator SPECTER. Judge Bork, let's come back to the 1971 article
which most of us have assumed that was where you were. You
were quoted in an interview in 1985, October, in "Conservative
Digest" saying that "I finally worked out a philosophy which is ex-
pressed in the 1971 Indiana Law Review."
Judge BORK. DO you have an extra copy of that, Senator?
Senator SPECTER. I have my copy. The specific quotation is, "I fi-
nally worked out a philosophy which is expressed pretty much in
the 1971 Indiana Law Journal piece, neutral principles and some
First Amendment problems."
Judge BORK. Yes, I think that is right. The explicitly political
speech business is a small part of that article and I thinkwas this
1985?
278
Senator SPECTER. In 1985, October of 1985.
Judge BORK. Well, as Senator Leahy just pointed out, by 1982, I
had written to the ABA Journal disavowing that position, so as far
as speech is concerned, I was not sticking to that position.
Senator SPECTER. Well, that is not quite the way I read it, Judge
Bork. In the 1982 article, you take exception to limited questions of
moral and scientific debate as being central to democratic govern-
ment.
Judge BORK. Senator, where is this?
Senator SPECTER. NOW, I am referring to the article
Judge BORK. What page is this?
Senator SPECTER. There is only one page. It is the one you re-
ferred to this morning. It is in the American Bar Association Jour-
nal.
Judge BORK. Oh, I am sorry. I have the wrong one. I have the
"Conservative Digest" here.
Senator SPECTER. Let's go back to the "Conservative Digest" if
you found that. The "Conservative Digest" says in October 1985, "I
finally worked out a philosophy which is expressed pretty much in
the 1971 Indiana Law Journal piece." That is less than two years
ago and the essential question is, is it right or wrong.
Judge BORK. Well, Senator, may I ask? I do not have the page
number. This is several pages long.
Senator SPECTER. Page 101. Left-hand column. While you are
taking a look at that, Judge Bork, could somebody pick up for you
"The District Lawyer" from May/June of 1985, where you say
pretty much the same thing?
Judge BORK. Well, this, Senator, I think clearly was said with re-
spect to my philosophy about judging in matters of the intention of
the lawmakers. I was not endorsing everything I had said in that
Indiana article, obviously, because in 1982, 3 years before that, I
had taken back the part about explicit political speech. This is my
basic philosophy of judgingthe original intention philosophy that
I was saying, I have worked it out and pretty much expressed it
there. And that is true.
Senator SPECTER. Judge Bork, in 1982, you made a comment that
was limited to moral and scientific debate, but let's go on to some
of the other points. Your views, as you expressed them, about the
Holmes doctrine on clear and present danger were not very equivo-
cal.
Judge BORK. Where is this. Senator.
Senator SPECTER. This is in the University of Michigan speech,
which Senator Leahy had asked you about. And you talk about the
Holmes-Brandeis position and then you say this statement defies
explanation. There is a terrifying frivolity in the whole statement.
Judge BORK. May I have the page please? I have it, Senator. I
found it. It is page 20.
Senator SPECTER. Page 20.
Judge BORK. Well, I think the statement I just quoted does defy
explanation and I think there is about it a terrifying frivolity, a
point that I must say that Alex Bickel made as well about this
thing. Holmes said, about a case where a man was advocating the
violent overthrow of the Government, he gave as a reason for pro-
tecting that advocacynow I have just said that Brandenburg
279
would protect it and I do not mind that rationale, but what Holmes
said was that if in the long run, the beliefs expressed in proletarian
dictatorship are destined to be accepted by the dominant forces of
the community, the only meaning of free speech is that they should
be given their chance and have their way.
In the first place, Senator, one wonders. One reason I think it
defies explanation is that the dominant forces of the community
have just passed the law he would hold unconstitutional. How can
he say that we must allow a proletarian dictatorship to have its
way but a law passed by a democratic majority cannot have its
way. It seems to me to defy explanation.
Senator SPECTER. Well, Judge Bork, you can have it, it seems to
me, one way or the other. It can either be frivolous and defy expla-
nation, but it cannot be right.
Judge BORK. Cannot be what?
Senator SPECTER. Cannot be both right and defy explanation and
be frivolous.
Judge BORK. Right, did you say?
Senator SPECTER. Well, you have said that you accept the Bran-
denburg v. Ohio and Hess v. Indiana decisions, which essentially
state the Holmes' clear and present danger doctrine.
Judge BORK. I do not think I necessarily accepted Hess, but what
I was criticizing here is a statement by Holmeshis reasons, his
reasoning in the case. I found his dissent in that case not to be a
very coherent statement of a rationale.
One could arrive, I think, at the Brandenburg decision, along the
lines I was discussing: we recognize the dangers of this kind of
speech but we will put up with a good deal of it rather thanwe
will err on the side of putting up with it rather than err on the
side of suppressing it. But that does not mean that this statement
makes any sense.
Senator SPECTER. Judge Bork, I do not quite understand how the
Holmes rationale can make no sense, and you can accept the ra-
tionale, but let me move on for just a moment.
Judge BORK. Senator, may I please try once more to explain that.
I do not accept the rationale. The rationale makes no sense. There
is a different rationale for Brandenburg than this. That is all I
meant.
Senator SPECTER. AS to Brandenburg, you said Hess and Branden-
burg are fundamentally wrong interpretations of the first amend-
ment. I do not want to belabor it any longer, Judge Bork, but it
just seems surprising to me, that in the context where you charac-
terize that doctrine as "fundamentally wrong" and attack the ra-
tionale as "frivolous," that you can, at the same time, say that you
now accept the current Supreme Court interpretation.
Judge BORK. Senator, I do not attack the rationale of Branden-
burg as frivolous. I attack the rationale that Holmes gave in Gitlow
as frivolous, and I do not know that I would agree with Hess. I
would have to go back and look at that. I just think Brandenburg is
where the law has settled, it seems to be an acceptable place for
the law to settle, and I am notI was engaged in a debate here
with the ACLU. I am not engaged in a debate any more. The law
has settled on Brandenburg. I think Brandenburg is fine. I am not
concerned about it.
280
Senator SPECTER. Judge Bork, I would like to come back to the

subject because I think the interpretation will be that if you take
Gitlow to Abrams, to DeJong, to the Smith Act prosecutions, and
Dennis, to Brandenburg and to Hess, that it is one doctrine, and we
can come back to it at a later time.
But the doctrine that Holmes expresses I think is a very well es-
tablished one, the essential part of which is that time has upset
many fighting faiths, and that these ideas ought to have full ex-
pression, until there reaches a time when there is an imminence of
violence.
Your very extensive writings, on a number of occasions, have
taken fundamental issue with that. So I will want to retrace
through the philosophy, to see how you can come to that conclu-
sion, because I think it is an important issue.
Before moving on to equal protection and the liberties argument,
I just want to understand what your position is at the present time.
In this 1984 ABA Journal article, you say that you continue to
think that obscenity and pornography do not fit the rationale for
protection, referring to the first amendment rationale. Have you
changed your view on that?
Judge BORK. NO. I have not, Senator.
Senator SPECTER. Well, would you disagree with Justice Rehn-
quist's opinion, who was Justice then, not Chief Justice, in Jenkins
v. Georgia, where he said that the first amendment prohibited
Georgia from convicting someone for showing the movie, "Carnal
Knowledge"?
Judge BORK. Well, I do not know the movie, "Carnal Knowl-
edge," and for all I know it may not be pornography. You know, I
think unfortunately for the Courtbecause some of them get quite
upset about itwhen a community bans a particular item, movie,
book or magazine as being obscene or pornographic, the Court is
almost necessarily faced with a task of examining it to see whether
it falls within the allowable definition of those words.
And for all I know, the court examined "Carnal Knowledge" and
decided it was not pornographic.
Senator SPECTER. The question, Judge Bork, is, you have a Geor-
gia statute on obscenity, you have a jury verdict, you have a convic-
tion, you have it upheld by the State Supreme Court, and then you
have the U.S. Supreme Court, Justice Rehnquist saying first
amendment protection stops that prosecution.
All of your writings sayand you affirm it here this afternoon
that the first amendment does not reach pornography or obscenity
to stop majority rule in a State court determination. And I am
saying to you that that pretty clearly places you at variance, at
least on that issue, with Justice Rehnquist, or, I am asking you if it
does.
Judge BORK. With respect, Senator, I think it does not at all, be-
cause merely because a particular State defines something as por-
nographic does not mean that the Supreme Court has to accept
that definition.
In order to protect the first amendment, the Supreme Court has
to apply a definition of pornography of its own. Otherwise, the
States could define literary works, or even political speech as por-
nographic.
281
Senator SPECTER. Well, but you are then saying that it is appro-
priate for the Supreme Court to strike down a conviction on first
amendment grounds where it is pornographic.
Judge BORK. No, no, Senator. I am not making myself clear. I
will try to be clearer in what I say. The determination of what is
pornographic for first amendment purposes has to be made by the
Supreme Court, or by the lower federal courts.
Otherwise, if you let a State's definition of what is pornographic
govern, things that are not pornographic, in a constitutional sense,
might be banned. So it is that the Supreme Court, when it looks at
"Carnal Knowledge," must be saying that this thing is not porno-
graphic; it does not have those characteristics that would entitle a
State to ban it.
I have not read the case. I am almost certain that must be what
they must be doing.
Senator SPECTER. Of course it would have to say that because
when it is obscenity, it is not within the first amendment, but if
the Supreme Court picks up a case where a State has entered a
conviction on pornographic grounds, and strikes it down as viola-
tive of the first amendment, as incorporated by the 14th amend-
ment due process clause, then they are reaching that form of
speech on first amendment grounds.
And you are saying that the first amendment does not reach that
kind of speech.
Judge BORK. The first amendment does not reach pornography,
as pornography is defined by the Supreme Court. If a State says
something is pornographic and the Supreme Court disagrees, it
must strike down the conviction because it is not pornographic in a
constitutional sense, and I think that is entirely what is taking
place there.
For example, if a State passed a statute saying that there was
imminent lawless action from a certain type of speech and convict-
ed somebody of that, the Supreme Court would have to take a look
and determine whether or not that was a reasonable judgment
about imminent lawless action, because if it were not, the Supreme
Court would reverse.
In all of these cases, I think the Supreme Court must make the
ultimate judgment about whether the State's categorization of the
speech as pornographic, or as dangerous, in the Brandenburg sense,
was a correct determination.
Senator SPECTER. Judge Bork, if you are saying that, then you
are saying that the majority, Madisonian majoritarianism which
you write about so extensively, does not apply in that situation.
That we are not allowing the legislature to make a definition, a
definition which a conviction is entered on, but that the Supreme
Court has the authority, legitimacyyour termto come in and
upset that conviction.
Judge BORK. Senator, with respect, that is entirely consistent
with my position on what I have called the Madisonian dilemma,
and that is that the Supreme Court must, by applying the Constitu-
tion, define what things the majority may rule, and what things
the majority may not rule, where the individual, or the minority,
must be left freedom.
282
Now free speech is perhaps the most central freedom in the Con-
stitution. That means that the Supreme Court, ultimately the Su-
preme Court, the Federal Judiciary, when it says pornography is
not protected, it must make sure that what the State calls pornog-
raphy is pornography, and that is why they are entitled to examine
a State determination that "Carnal Knowledge" is pornography
and to reverse it.
Senator SPECTER. That is done by applying the first amendment.
Judge BORK. Yes, Senator. I agree, entirely.
Senator SPECTER. But your writings are exactly to the contrary,
as recently as 1985.
Judge BORK. Senator, I do not understand. I am missing some
aspect of this, because in 1985, I said the first amendment protec-
tion did not extend to pornography. All I am saying now is, that
the Supreme Court must decide what is pornography, and what is
not, in order to apply the first amendment protection.
Senator SPECTER. And you are saying that they do apply the first
amendment protection.
Judge BORK. Not to pornography. They have to define what
Senator SPECTER. But they make a definition of whether the
speech is, or is not, pornography.
Judge BORK. Right.
Senator SPECTER. And they interfere with the determination
made by the State of Georgia.
Judge BORK. They must do that.
Senator SPECTER. But you have written that the Court does not
have legitimacy in using the first amendment to interfere with
what a State has done.
Judge BORK. Senator, I never said that the first amendmentthe
Court did not have a legitimate role, under the first amendment, to
interfere with what the State has done. Now, the State may say we
are regulating pornography, but it may be regulating things that
the Supreme Court does not think are pornography. Therefore, the
Supreme Court must make sure that it is pornography, before it
allows the State to ban it.
Senator SPECTER. Judge Bork, with all due respect, I think you
are putting the rabbit in the hat. The Supreme Court has to take
the issue to decide what is involved. Now you have written, going
back to the Indiana Law Review article, "There is no basis for judi-
cial intervention to protect that variety of expression we call ob-
scene or pornographic."
Now you cannot have a determination as to whether it is obscen-
ity or pornographic until the Court takes it up, but you say, flatly
here, that there is no basis for judicial intervention.
Judge Bork, I think this is important because you have this
strain running through the equal protection clause, the due process
clause, through all of your writings.
What you are essentially challenging is any basis for judicial
intervention, and of course the Court has to make a determination
as to what the facts are, if they are to reach a conclusion. But the
issue which you have framed is whether the Court reaches that
question.
Judge BORK. May I have a page number there.
Senator SPECTER. Page 20.
283
Judge BORK. All right. The Court must protect speech that the
first amendment covers. It must not protect speech that the first
amendment does not cover and which a community wishes to
outlaw. A community's definition, or characterization of a particu-
lar magazine, or book, or movie as "pornographic" cannot be taken
as final.
The Supreme Court must have its own definition of what is por-
nographic, and, indeed, it does, and then look at the book, or the
speech, to see whether it is pornographic, and hence, subject to
State regulation.
Senator SPECTER. But isn't it exactly the same, that the Supreme
Court must make a determination as to what is equal protection of
the law, and the Supreme Court must make a determination as to
what is due process of law?
Senator SPECTER. And the thrust of your writings have been that
the Court may not make those interpretations, absent some specific
constitutional right. That it is really the same area of judicial
action, and Supreme Court determination, Supreme Court legitima-
cy.
Judge BORK. Senator, in the pornography case we are talking
about, there is absolutely no problem, because the Supreme Court
has the first amendment and its guarantee of free speech and free
press to apply, and it must apply it.
So that there is no question of judicial legitimacy in the first
amendment area. There is a constitutional provision which must be
applied.
Senator SPECTER. But it all depends on whether the Court, legiti-
mately, may apply the first amendment to pornography cases, and
you have said that they should not.
Judge BORK. Well, and so has the Supreme Court said that, I be-
lieve. But the whole thing I think we are discussing, Senator Spec-
ter, is who determines whether or not this thing is pornography,
and all I am saying is, that in order to serve the first amendment,
the Supreme Court must determine that and not the local commu-
nity.
Senator SPECTER. Well, I would say that the Supreme Court has
to make that same determination in the due process area, or the
equal protection area
Judge BORK. Yes.
Senator SPECTER [continuing]. Which, as I understand it, you say
they do not have legitimacy in certain circumstances.
But let me move on to the point that I had intended to start
with.
You said yesterday, Judge Bork, that the professorial writings
did not really involve damage, that nobody is hurt in a classroom,
but people are hurt in a courtroom, and that is the point of depar-
ture.
I would raise a question about the power of ideas, and the work
of a thinker, and point to your own comments in the antitrust field
where, as you point out, there was a new idea at the University of
Chicago in the antitrust field. It was an idea of your mentor, heir
and director, whom you have written about so extensively, and it
became the law, as you have articulated it.
284
And I think that the ideas are very, very important. When you
talk about equal protectionand your writings have focused on
equal protection applicable only in a racial situation, and you have
expanded that to ethnic groupsand you have expanded that even
further in some of your testimony todayat least as I interpret
itto a reasonable standard test, and these are subjects which I
want to explore with you at some length, and I only have a few
minutes left, about 5 or 6 minutes left here today.
It seems to me, in reading the history of Plessy and Ferguson,
and the adoption of the equal protection clause of the 14th amend-
ment, and reading Raoul Berger, that there was no question that
at the time the equal protection clause of the 14th amendment was
adopted, that the framers, or ratifiers, did not intend, in the remo-
test way, to cover desegregation. That they expected to have segre-
gated schools.
There were many States which had segregation. Five border
States, eight Northern States. The District of Columbia schools
were segregated. The Senate gallery was segregated.
So that the interpretation which you have advanced, that "sepa-
rate but equal," in the absence of equality through separation must
lead to integration, seems to me to be at very sharp variance with
what the framers had intended.
So that if you take a consistent interpretation, you cannot come
to the result that the Supreme Court did in Brown v. Board of
Education.
But even on more fundamental grounds, you could not come to
the conclusion that the schools had to be integrated on due process
grounds, and you have been very critical of the due process clause,
saying that if there is not a specifically articulated right in the
Constitution, you cannot derive it from due process.
But yet, the D.C. schools were desegregated. Where can you find
in the Constitution, in the due process clause, authority for deseg-
regation?
Judge BORK. I will answer that first, Senator, but I would like to
go back to Brown and the equal protection clause, if you will, be-
cause that seems to me to be important, too.
Senator SPECTER. Sure.
Judge BORK. Boiling v. Sharpe, I guess, was the companion case
to Brown v. Board of Education, and the Supreme Court there
faced a problem because the equal protection clause through which
Brown moved to accomplish desegregation applies only to States
and not to the federal government.
And you had, then, the problem of the District of Columbia, and
the only available constitutional clause, they thought, was the due
process clause, which does apply to the federal government.
I am told that was the first time, I think, in Boiling v. Sharpe,
that anybody said that the due process clause contains an equal
protection component like the equal protection clause.
Senator SPECTER. NO. They did not say that, Judge Bork.
Judge BORK. Didn't they?
Senator SPECTER. NO. In Boiling v. Sharpe, the decision was made
on the ground that it was fundamentally unfair, an arbitrary dep-
rivation of liberty in violation of the due process clause, not reverse
incorporation.
285
Judge BORK. I know. They said the fifth amendment does not
contain an equal protection clause, but the concepts of equal pro-
tection and due process, both stemming from our American ideal of
fairness, are not mutually exclusive. And as a matter of fact, since
thenI guess the reasonsince then, they are not mutually exclu-
sive, and the equal-protection concept got into the due process
clause. And since then it is commonplace for the courts, or for ad-
vocates, to refer to the equal-protection component of the due proc-
ess clause, which is what this is taken to have accomplished.
Senator SPECTER. Well, I think the Court is perfectly clear here,
that they do not find an equal-protection obligation for the federal
government, and they put it on due process grounds and on fair-
ness grounds.
But the underlying question, Judge Bork, that seems to me to be
applicable here, is why does the Court come to that position? It
seems to me that it goes back to a statement you made yesterday
in response, I believe, to a question from Senator Thurmond, where
you said, referring to the commerce clause, that the appointment
power meant that sooner or later, the commerce clause would be
interpreted in accordance with the needs of the nation, which is a
very broad articulation of what the Supreme Court does, meeting
the needs of the nation.
That certainly is not concrete and that certainly is not specified
in the Constitution
Senator SPECTER [continuing]. At variance with what the Com-
merce clause says. And if you read the history of the equal protec-
tion clause and the due process clause, and the status of segrega-
tion, you find that it is very much opposed to integration.
And yesterday when you were asked about which was the most
controversial case besides GriswoldI think Senator Hatch asked
you thatyou picked Brown v. Board of Education. And that was
because
Judge BORK. It was controversial.
Senator SPECTER [continuing]. It was a controversial case. You
said that even though cases are good, they are controversial. You
did say that?
Judge BORK. Even though I think legally they are clear, I meant
politically controversial.
Senator SPECTER. Well, that was the question. You said it was
controversial.
Judge BORK. Yes.
Senator SPECTER. And I think it was that controversial because
there was no legal underpinning for it.
Judge BORK. Senator, I think there was, and let me say two
things about it. One is that I have recently been toldI have never
read the briefs in the Supreme Court but I know some folks who
have in Brownand it begins to look as if there is historical argu-
ment that the framers of the 14th amendment did not like segrega-
tion and may have intended to do away with it, but thatand the
black codes and the segregation did not begin to come into the
South until the troops left the South, the Northern troops left the
South. And later the Supreme Court changed. Plessy v. Ferguson,
after all, is a 1896 case, which is fairly long after the 14th amend-
286
ment, Plessy v. Ferguson being the case that said separate but
equal is all right.
But passing that, passing that historical evidence, which I think
casts some doubt on the flat assumption that the 14th amendment
really meant separate but equal, let me say this. They wrote a
clause that does not say anything about separation. They wrote a
clause that says "equal protection of the laws".
I think it may well be true, as you suggest, Senator, that they
had an assumption which they did not enact, but they had an as-
sumption that equality could be achieved with separation. Over the
years it became clear that that assumption would not be borne out
in reality ever. Separation would never produce equality.
I think when the background assumption proved false, it was en-
tirely proper for the court to say "we will carry out the rule they
wrote" and if they would have been a little surprised that it
worked out this way, that is too bad. That is the rule they wrote
and they assumed something that is not true.
And in that way I do not think any damage is doneyou can
even look at it more severely. You could say suppose they had writ-
ten a clause that said "we want equality and that can be achieved
by separation and we want that too."
By 1954 it was perfectly apparent that you could not have both
equality and separation. Now the court has to violate one aspect or
the other of that clause, as I have framed it hypothetically. It
seems to me that the way the actual amendment was written, it
was natural to choose the equality segment, and the court did so. I
think it was proper constitutional law, and I think we are all
better off for it.
Senator SPECTER. Judge Bork, I think we are better off for it too,
but I do not think that that is a logical conclusion if you are look-
ing at the framers' intent. But if you turn to due process and take
your application of due process of law and what you have said
about Griswold and Roe v. Wade, how can you justify Boiling v.
Sharpe applying the due process clause to stopping segregation?
Judge BORK. 1 do not know that anybody ever has. I think that
has been a case that has left people puzzled, and I have been told
that some Justices on the Supreme Court felt very queasy after-
wards about Boiling v. Sharpe.
Senator SPECTER. If you take Raoul Berger's analysis they felt
very queasy about Brown v. Board of Education and Boiling v.
Sharpe because they came to a decision, essentially as you said it
yesterday, in accordance with the needs of the Nation.
My time is up, but what I want to come back to is how that ap-
plies in other contexts, how that applies in privacy, how that ap-
plies in equal protection. And if you are willing, as a Supreme
Court nominee, to say that you sanction Brown v. Board of Educa-
tion, and you sanctioned Boiling v. Sharpe on due process grounds,
then it seems to me you are a significant distance from original
intent.
Judge BORK. I do not think I am on Brown v. Board of Educa-
tion.
Senator SPECTER. HOW about Boiling v. Sharpe?
287
Judge BORK. I think there may be a significant difference there,

and I did not say I sanctioned it. I think that constitutionally that
is a troublesome case.
Now it has been suggested that if the Supreme Court had struck
down segregation in all of the States under the equal protection
clause, Congress most certainly would have stopped segregation in
the District of Columbia. And it would have been a national scan-
dal if they had not.
Boiling v. Sharpe seems to have been propelled by a feeling that
if we are going to do this to all of the States, we cannot let the
federal government do it. I understand that feeling.
Senator SPECTER. But as a matter of principle and as a matter of
exponent as you are of neutral principles, if you can apply the due
process clause as they did in Boiling v. Sharpe, why not in Gris-
wold v. Connecticut?
Judge BORK. Well, if they apply the due process clause that way,
Senator, I quite agree with you. Why not in Griswold v. Connecti-
cut, and why not in all kinds of cases? You are off and running
with substantive due process which I have long thought is a perni-
cious constitutional idea.
Senator SPECTER. I think it is as you articulate it, but if you start
to deal with the needs of the nation and you accept in Boiling v.
Sharpe to strike down segregation in the District of Columbia, and
you accept it in the commerce clause, what happens to your
principle?
Judge BORK. Senator, I did not accept it in Boiling v. Sharpe.
And when I say I accepted it in the commerce clause, I accept it
because what has happened is irreversible. There is simply no
point in a judge running around trying to tear down the federal
government in the code book and all the institutions build up, and
you do it by a principle of stare decisis. That is all you can do, a
principle of following precedent so that we do not try to tear up the
Nation in a vain attempt to take the commerce clause back to
where it was in 1790.
Senator SPECTER. Final question: Do you accept Boiling v. Sharpe
or not?
Judge BORK. I have not thought of a rationale for it because I
think you are quite right, Senator.
Senator LEAHY. YOU say you have or have not?
Judge BORK. Have not. I think you are quite right, Senator, be-
cause if you say it is due process and we will do whatever is fair or
good under due process, the court's powers are unlimited. That is
the problem I have with that substantive due process.
Senator SPECTER. Well, I know that you will not reverse Boiling
v. Sharpe in any event, but it is a very uneasy conclusion, Judge
Bork, when you talk about the needs of the Nation. And when my
next round is up, you get into the concepts of rooted in the con-
science of the people and you get into Holmes, who was very much
against substantive due process but talked about striking laws on
which reasonable men could not differ, and you see the application
of Alexander Bickel to these doctrines and his articulation of insu-
lation and leisure, and where the courts have been and what the
tradition of this country is, and I think that what so many of us
288
are looking for here is some reassurance that you would follow in
that tradition. That is what I am looking for.
Judge BORK. All right. I think
Senator SPECTER. I am concerned about where you are going to
be. If you are going to accept the Supreme Court where it is today,
whether I like it all or not, fine. But if you are going to make
sharp variations from it, then we have got to pursue quite a
number of questions because I think your answers to Senator
Leahy raise a number of issues, at least, that I want to pursue.
Thank you very much, Mr. Chairman.
The CHAIRMAN. Before we go to the next questioner, I had indi-
cated earlier that about every hour-and-a-half we would give an op-
portunity to break for 5 minutes. Although we have only gotten
through two questioners, I suggest we take a 5-minute recess, and
then we will begin with Senator Heflin.
Judge BORK. Mr. Chairman, I wonder if I might have 20 seconds
to supplement my discussion with Senator Specter?
The CHAIRMAN. Take as much time as you like, Judge.
Judge BORK. Thank you very much, Mr. Chairman.
The CHAIRMAN. IS Senator Specter here though? Maybe if you
are going to supplement Senator Specter, we should have him in
the room.
Judge BORK. Well, why don't I wait until he comes back.
The CHAIRMAN. I think he is just outside the room.
Judge BORK. All right. Thank you.
[Brief recess.]
Judge BORK. The Senator is here now.
The CHAIRMAN. Yes. Please proceed, Judge.
Judge BORK. Senator Specter, I just asked for a moment to sup-
plement
The CHAIRMAN. We will have order in the hearing room please.
Judge BORK [continuing]. Supplement one answer to you and
that is this: I want to make it clear, absolutely clear if I can, that
my doubts about the substantive due process approach to Boiling
and I really think that Boiling said that the equal protection com-
ponent exists in thewe can go back to that. My doubts about the
substantive due process of Boiling v. Sharpe does not mean that I
would ever dream of overruling Boiling v. Sharpe, as you
suggested.
And furthermore I should make it clear, as I have said repeated-
ly, segregation is not only unlawful but immoral. And I do not
want my doubts about a constitutional mode of reasoning to be
turned into anything other than that, not by you, Senator. I mean
just by people who are listening to us.
Senator SPECTER. Judge Bork, I appreciate your comment and we
can pick it up later as to issues which are awful and immoral, but
perhaps the court ought to reach again.
Judge BORK. I suspect we will pick that up again, Senator.
Senator SPECTER. Thank you very much for the addition.
The CHAIRMAN. IS there anything else you would like to say?
Judge BORK. NO, thank you, Mr. Chairman.
Senator Heflin from Alabama.
Senator HEFLIN. Judge Bork, I have given considerable thought
to why the furor and we have a furor. I suppose that probably this
289
isyour confirmation is one of the hottest issues that has been
around in a long time. I suppose like a gas burner, there are a lot
of flames, but the most intense flame, it seems to me, is Roe v.
Wade.
Now you have been asked some questions about it. I do not think
there is any question that the pro-life people who fervently and ve-
hemently support you think that you will reverse it or at least
some part of the court will reverse it.
The pro-choice people just as vehemently and fervently believe
that you will also. There are those that probably would say if the
President did not think that you would reverse that case or join
the majority to reverse that case, that he would not have appointed
you. You can go on down with various speculations. I do not think
there is much question that this is a major issue.
There are those that contend that the pro-choice people have ba-
sically generated a heat among the civil rights coalition and that
the civil rights coalition are mistakenly equating abortion rights
with civil rights. Whether that would be true, I do not know. I do
not know but it remains to be seen.
There is no question that the spotlight is on this issue and it is
an issue that I think deserves clarification and directness on your
part.
You answered the question about Roe v. Wade and what you
would do. I believe that Senator Hatch, and maybe someone else,
asked you questions about it. But, as I recall and looking at the
record, you had basically three questions that you said you would
ask a lawyer. I do not know whether you said asking a lawyer is an
invasion on your part or not. If not, then we can clarify that.
Basically, you had indicated that you would ask the lawyer first
to see if he could find a right of privacy ought to be found in any
one of the specific amendments, but in some principal fashion from
the Constitution.
So I want to know not only where you got it but what it covers.
So I suppose that that question would be: Where do you find in the
Constitution a general right of privacy?
And second, you said that if you would tell that lawyer that if
you cannot find a general right of privacy, can you derive a right
to an abortion or at least to a limitation upon anti-abortion from
the Constitution.
You said that you wouldif after listening to the arguments and
to those two questions that you would raise, then if did not sound
like it was going to be a viable theory, which would be directed to
those two, then you would say you would like for him to argue
whether it is a kind of case which should not be overruled, which is
basically stare decisis.
Now on the general right of privacywell, first, let me quote
what you have been quoted and this comes from magazines and
some of your writingsif it is incorrect, then correct meRoe v.
Wade is in itself an unconstitutional decision, a serious and wholly-
unjustifiable usurpation of eight legislative authorities. Is that a
correct recital of a statement you have made?
Judge BORK. I made that statement, yes.
Senator HEFLIN. All right, sir.
290
Now we go back to the general right of privacy, upon which Roe
v. Wade is based coming out of Griswold, and you had two, one Jus-
tice Goldberg out of the ninth amendment and the other one from
Justice Douglas which is called the penumbra, which is sort of a
vague term, but I understand that is something to do with astrono-
my and various shadows and unclear things, but it comes from the
specific mentioning of rights of privacy, as you have enumerated to
me in various other amendments.
Now you in your studying it and making a statement like that,
do you really believe that you can find anywhere a general right of
privacy that you would accept from the Constitution?
Judge BORK. I do not know, Senator. I certainly would not accept
emanations and penumbras analysis, which is I think less an anal-
ysis than a metaphor. And the ninth amendment part gives me dif-
ficulty because it is a little hard to know what category of rights, if
any, were, supposed to be preserved by the ninth amendment unless
it is the State constitutional rights.
But there may be some way to do it. I have heard fairly strong
moral arguments for abortion, just as I have hard fairly strong
moral arguments against it. Whether those moral arguments could
be rooted to the constitutional material, I really do not know.
What I do unfortunately, I suppose, is take Supreme Court opin-
ions that seem to me unsatisfactory as matters of constitutional
reasoning and criticize them. And I have not gone back into the
history and other things in an attempt to construct a new
Senator THURMOND. Judge, keep your voice up so we can hear
you.
Judge BORK. All right, Senatora new right of privacy that has
some other meaning. Maybe, as I say, one of the moral arguments
would apply perhaps only to abortion because Griswold and Roe
are quite different cases in quite different situations, and I do not
know if you want me to rehearse some of the moral argumentation
I have heard or not, but I do not knowI have not heard anybody
yet root it in the Constitution.
Senator HEFLIN. But I am correct in assuming that as of now at
this hearing that you know of no theory which could be derived
from the Constitution which would grant a general right of priva-
cy.
Judge BORK. Well, certainly not a general right of privacy that is
as free-floating as the one we have now because we do not even
know what it covers. Privacy to do what? But it is true, Senator, I
do not know, I do not have available a constitutional theory which
would support a general defined right. But that does not mean that
there is not one, and it seems to me I often am surprised to learn
that there is an argument in a certain direction that I had not an-
ticipated and I have not tried to anticipate one here.
And I can only say that if somebody has a constitutional theory,
I will listen to it attentively.
Senator HEFLIN. Am I correct in saying that you do not expect to
seek it and try to find it yourself?
Judge BORK. Well, if a case came before me I would, but, no, now
I am in the business of hearing and deciding cases, and I really do
not have time to go off and anticipate a question that may or may
not ever come before me. But if a case comes before mesome-
291
times lawyers' arguments give you ideas that the lawyer has not
expressedI would send my clerks out and try to research that.
Senator HEFLIN. All right, now to the second one. If you cannot
derive a general right of privacy, can you derive a right to an abor-
tion which is "a" of two and you have "b", which is, can you derive
a right to abortion from the Constitution, that is, obviously, that
specifically gives somebody a right of privacy? So, we just dismiss
I mean, that I do not think is in the language there that could be
construed that says you have a specific, implicit, explicit right to
an abortion, in the Constitution.
All right, your "b" part of that is, at least which would provide a
limitation upon anti-abortion statutes legitimately from the Consti-
tution. What do you, at this time, see as a possibility of a limita-
tion?
Judge BORK. Well, it would seem to me, Senator, that it would be
easier to argue a right to an abortion. I am not saying it would
work, but it would be easier to do that than it would be to find this
generalized right of privacy. For example, I understand groups are
workingI have not seen their work product, but I am told that
groups are working on that. For example, some groups, I think, are
trying an equal protection argument.
Only women have this specific burden and forcing a woman to
carry a baby to termsome of the groups are arguing, I suppose, is
a form of gender discrimination. I have not seen that argument
worked out, but I know it is being worked on.
Senator HEFLIN. Well, that would be basically difficult from the
language of the Constitution, since mostly parts of the Constitution
is a conferring power on the federal government with a reservation
to the States and to the people for the power that is not specifically
granted to the federal government, under the 10th amendment.
Judge BORK. I was referring more to the equal protection clause
of the 14th amendment, as the place in which that argument would
be rooted. I do not suggest it would succeed. I do not suggest it
would not. You asked me if one could begin to talk about where
one might root such an argument, and I think the right to an abor-
tionyou might attempt to root it there, successfully or not, I do
not pretend to guess, but it is easier than a general right of priva-
cy.
Senator HEFLIN. Well, that would go basically contrary to some
of your feelings on the 14th amendment, extending in that area,
would it not?
Judge BORK. In the area of women?
Senator HEFLIN. Well, in the area of trying to give it as to a par-
ticular right of a limitation upon the States to pass certain laws,
which would, in effect, limit the anti-abortion statutes.
Judge BORK. Well, I do not mean, Senator, to try to offer any-
body some hope or something that I would find that constitutional
right. I am just saying that that is one area in which the argument
might take place. And I do not think it is entirely contrary to my
constitutional philosophy because I have been saying, this morning,
that the equal protection clause applies to women as well as to
menobviously, because it would be ridiculous to say it applies
only to menand that for over 90 years, the Supreme Court has
been using this question of is this a reasonable, fair classification.
292
I would suppose that is where the argument would be built,
might be built. But, I can go no further than that. I have not seen
the argument. It is not doctrinally absolutely impossible, but I
cannot go any further than that.
Senator HEFLIN. All right, so now the third is the stare decisis,
which would argue that this is the kind of case that should not be
overruled. Do you have any thoughts pertaining to how you would
approach the issue of Roe versus Wade from a stare decisis basis?
Judge BORK. Senator, I do not want to get too close to the actual
case, but
Senator THURMOND. Mr. Chairman, it seems to me he is border-
ing now on a question asking him to express an opinion on a
matter that may come before the Supreme Court and I would think
that would be improper.
The CHAIRMAN. Well, that is for the Judge to decide, what he
thinks he can and cannot answer. Judge, how do you wish to
answer that question?
Judge BORK. Well, I was beginning to say, Mr. Chairman, to Sen-
ator Heflin, that I do not want to discuss stare decisis in the specif-
ic context of Roe v. Wade because that is getting awfully close to
how do the factors apply there and therefore, how would you
decide. But I will be glad to discuss my general approach to stare
decisis and the kinds of factors I would consider. I do not think I
can discuss how they might apply in this instance, because that
would be too close to committing myself to a particular vote later.
If that is satisfactory to you, I will be glad to.
Senator HEFLIN. Yes, go ahead.
Judge BORK. All right. I think it has to be, in the first place,
clear that the prior decision was erroneous. I mean, not just shaky
but really wrong in terms of constitutional theory, constitutional
principle. But that is not sufficient to overrule. I have discussed
these factors before, but I will mention them again, and a number
of factors counsel against overruling. For example, the develop-
ment of private expectations on the part of the citizenry. Is this an
internalized belief and a right? The growth of institutions, govern-
mental institutions, private institutions around a ruling.
Now, I have given two examples of that. One was the commerce
clause and one was the free press clause, in both of which cases
many institutions have grown up in dependence upon that and
they have become part of the fabric of our national life. The need
for continuity and stability in the law, which is certainly always a
factor to be weighed. The need for predictability in legal doctrine. I
think the preservation of confidence in the Court by not saying
that this crowd just does whatever they feel like as the personnel
changes. And the respect due to the judgment of predecessors on a
legal issue, if they have explained their judgment.
Now, of course, against that isif it is wrong, and secondly,
whether it is a dynamic force so that it continues to produce wrong
and unfortunate decisions. I think that was one of the reasons the
court in Erie Railroad v. Tompkins overruled Swift v. Tysona de-
generative force, I think what Brandeis or somebody maybe called
dynamic potential. That is the kind of thing you would have to
weigh and that is a very fact-based consideration, a very particular-
istic consideration about whether this is the kind of case that goes
293
one way or the other. I think the Court has got to work out a
better theory of stare decisis than it has now articulated.
Senator HEFLIN. Well, is it fair to say that number one, that you
think that the reasoning that brought about the decision of Roe v.
Wade is wrong? That the decision, based on that reasoning, was
wrong? And that unless some general right of privacy is shown to
you to come from the Constitution or unless you can find, in the
14th amendment or somewhere else, some limitation on anti-abor-
tion statutes, then basically you would have to, under your think-
ing, look to the area of stare decisis in determining whether or not
you think Roe v. Wade ought to be reversed?
Judge BORK. That is correct, Senator. I would have to ask myself
what the presumption in favor of preserving a prior precedent
meant in this case and whether it was overcome by other factors.
Senator HEFLIN. Another question and a line of questions. We
have had, from your writings, some of which you have recanted,
others which you have not, that ifwhen I look at those, I can
come to conclusions depending on the result that I or somebody
else may want to reach on this matter. So, in trying to be fair to
you, we ought to basically look at the overall total man.
On one hand, we have those that, in effect, contend that you are
a right-wing extremist, who has, in the back lobes of his mind, a
radical right-wing agenda that if you get on the Court, you want to
put that agenda into place. On the other hand, there are those that
say you are a highly intellectual individual and that you have been
an evolving individual who has great intellectual curiosity who
wishes to explore different, unconventional concepts and theories
and experience the unusual.
From reading your history and background as reported in news-
papers, publications and all sorts of things, I think that we could
say that there have been unusual things. One interpretation is that
you have great intellectual curiosity. I have gone back and looked
at some of the things from your youth and have seen how you have
either involved or, on the other hand, that you have displayed a
background of being a zealot at times.
For example, in your early youth, they list you as being a social-
ist, that you stated that socialism sounded like a swell idea and re-
bellion also sounded like a swell idea, at one time. Then, there are
writings in some of the papers to the effect that you succeeded in
getting a young friend of yours to attend a Communist party meet-
ing. That you were a champion boxer. You were also the president
of your class and editor of the school paper. And yet you went into
the Marine Corps and I assumedid you volunteer going into the
Marine Corps?
Judge BORK. Oh, yes, you had to.
Senator HEFLIN. That is what I recall because since I am a
Marine, too, my recollection of history might be a little bit differ-
ent, but in World War II, as I recall, everyone that ever went into
the Marine Corps was a volunteer. And then, after you came out of
the Marine Corpswell, you have an interesting career in the
Marine Corps. You were a Japanese language translator, as I un-
derstand it.
Judge BORK. Well, they started me in Japanese language school
but then they dropped the bomb and they did not need Japanese
294
language specialists any more. So instead, they sent me to China
with a rifle to guard Chiang Kai-Shek's supply lines. It did not do
them much good, but that is what we did.
Senator LEAHY. That is not your fault.
Senator HEFLIN. Then you came back and you went to the Uni-
versity of Chicago and, according to some of their reports, you were
a liberal democrat. Then you went back into the Korean conflict in
the Marines. According to some, you liked the discipline of the
Marine Corps, the esprit de corps. Then you came back and I am
not exactly sure, but after coming out of the Marine Corps, as I un-
derstand it, the second time, there was some instance in which you
still exhibited maybe some socialistic leanings.
Judge BORK. I would not say socialistic. No, I think I was a liber-
al at that point. That was my period of support for Adlai Steven-
son.
Senator HEFLIN. All right. Then after that, you, of course, I be-
lieve went to law school. You had the professor director, you got
under the free market theory, and then after graduating, you start-
ed to work with a large law firm. And then, as a member of that
law firm, took a position contrary to some of the policies of the law
firm before, that the law firm ought to recruit Jewish lawyers.
Judge BORK. They had a quota.
Senator HEFLIN. And you endeavored to try to bring about the
integration, in your law firm, of more Jewish members.
Judge BORK. Yes, it should be said about that firm, they had
well, it was not a rigid numerical quota, but they had, in effect, a
quota and a young man came and appliedI was quite close to a
couple of the senior partners and they said they did not want to
take him because he was Jewish. That resulted in a considerable
argument by me with them. He was a smashing success.
Senator HEFLIN. YOU left the law firm in 1962 where you were
making a salary of around $40,000 to become a professor at less
than $15,000.
Judge BORK. I don't think the disparity was that great, Senator. I
would like to make it that dramatic, but the fact is I think I was
making around $25,000 or $26,000 and I went to $16,000. The real
disparity was in the years that followed because it was going up
rapidly at the law firm and it was not going up rapidly at Yale.
Senator HEFLIN. Well, that makes me think that you were not a
professorial zealot at that time wanting to get to be an academic
and that sort of thing. In other words, if the salaryif you had
been making $100,000, according to the free market concept it
would have been difficult to leave.
Judge BORK. Oh, no. No, no, Senator. When I decided to leave the
firm it was dissatisfaction with the life I was leading. I mean, it
was a good practice, but I didn't want to do it for the next 40 years.
And one of the senior partners came to me and said, "You know,
we haven't spread the money around enough," and he mentioned a
number. And I said, "No matter what number you mention I'm
going."
I liked the firm but I didn't want to lead that life. I wanted to be
an academic.
Senator HEFLIN. HOW long did you have that desire to be an aca-
demic? When do you think it generated
295
Judge BORK. Oh, aboutwell, it came to me on and off. You
mentioned my experience in theI liked the Marine Corps, and
when I was at the university I used to say that my ambition in life
was to end up as a brigadier general in the Marine Corps Reserve
and a full professor. But that faded away. When I began to practice
law, I liked the practice so much for about 5 or 6 years that I
thought I would neverI thought I would just drop the professor
idea. Then it came back to me.
I wanted to work on theories of the law and I really couldn't do
that in the firm, and that is why I went off. I now wish I hadn't
worked on theories in the law, but I did.
Senator HEFLJN. Well, now there are those, and this is not my
idea, that say, well, you can look at his attire and the way he
wears his hair as some indication. I don't agree with that. I have
got several members in my staff that have beards and everything
else. Would you like to give us an explanation relative to the
beard?
Judge BORK. Yes, I would. It is a very unromanticit is a very
unromantic explanation. In 1968-69 academic year I was on sabbat-
ical leave in England with my family. I was writing a book. It was
an antitrust book, and you may ask why I chose to write it in Eng-
land. The answer is the alternative was to write it in New Haven.
[Laughter.]
And Iwe went on a canal boat trip. You drive it yourself along
the canal, and the family was in there. And the bathroom, the sink
was right against the wall, so when you tried to shave, unless you
shaved with your left hand, I couldn't do it. And for about a week I
didn't shave, and by that time my children had become fascinated
with what was then the beginnings of a red beard and they asked
me to let it go. So I did.
I grew aI liked it much better when it was red, Senator. And I
let it grow, and it kind of intrigued me and intrigued my children,
and I have had it ever since.
Senator HEFLIN. There is nothing wrong with it. I would certain-
ly clear that because there are a lot of bearded voters out there
and I don't want to [laughter] make hair of them. [Laughter.]
You know, we got some in Alabama, so I don'tyou know, you
have had a varied career. You had a lot of things. Some of your
writings are extreme. Some of them you have recanted. Some of
your activities, you have gone through a lot of changing ideas. And
really, it comes down to I wish I was a psychiatrist, rather than a
lawyer and a member of this committee, to try to figure out what
you would do if you got on the Supreme Court.
Judge BORK. I think, Senator, the best guide to that is what I
have done in any position of responsibility when I wasn't speculat-
ing. As a partner in a law firm, I was a very regular lawyer, noth-
ing wild about it. As Solicitor General, I carried out my duties in
not a speculative or extreme fashion at all. And as a judge on the
Court of Appeals, I think I have not been extreme in any way.
And I don't think I have said much extreme in my life. You
know, Mr. Cutler had an article in this morning's paper, which I
think was put in the record, showing that my positions on these
various cases are shared by a lot of what nobody can doubt are
mainstream Justices and professors.
296
Now I did make the remark about explicitly political speech. It
was not a good idea. I have abandoned it. I prefer "abandoned" or
"evolved out of to the word "recanted," which sounds a little like
something else. And a few other things I have grown out of, but a
lot of the stuff I still believe.
Senator HEFLIN. Well, now there are those that raise the issue
that your changing of your position and sort of renouncing your po-
sitions on certain positions came only at a time when a carrot was,
in effect, being dangled before your eyes; and, in effect, youand,
in effect, that you changed your mind on certain writings when
you knew that you would have to come up and face questioning
before a Senate panel on confirmation on Solicitor General. Again,
also when you came up for the U.S. Court of Appeals.
Judge BORK. Let me say this, Senator. You have recantyou
havenot recanted, recounted a series of my positions, political po-
sitions, ranging from my socialism in my youth to my liberal posi-
tions to my more conservative positions. None of those changes
took place in connection with any confirmation hearing and if
younot one of them took place in connection with any carrot.
And let me just point to a change in my legal philosophy which
is the most dramatic change in my writing, and that is, from De-
cember 1968 when I wrote the Fortune article called "The Supreme
Court Needs A New Philosophy," accepting the idea of Griswold v.
Connecticut as a reasonablenot the penumbras and emanations,
but the idea of reasoning from different provisions to a more gener-
al right, to 1971 when I took it all back, I was offered nothing in
there. Nothing was in prospect. There was no reason for me to
change my mind except that I changed my mind.
Senator HEFLIN. Well, they say that publicly that you have
changed your mind. In effect, at the hearing or shortly before the
hearings pertaining to the Solicitor General appointment and the
appeals judge appointment.
Judge BORK. Well, the change from 1968 in Fortune to 1971 in
Indiana, which was a dramatic change, there was no carrot or con-
firmation hearing or anything else anywhere in sight. And the
change in my political positions from my youth to today never had
anything to do with a confirmation hearing or a carrot or anything
else.
Now it is easy to always say, well, it'syou know, on the one
hand, this fellow is rigid, and if he displays signs of evolving that
must be opportunistic. I can give you examples of changes, as I just
have, that had nothing to do with a carrot or a reward, but that is
as much as I can do. I can assure you that that is not the way I
operate, never have.
The CHAIRMAN. Senator?
Senator HEFLIN. My time is up. All right.
The CHAIRMAN. Judge, anything else you would like to add?
Judge BORK. NO thank you, Mr. Chairman.
The CHAIRMAN. Senator Humphrey?
Senator HUMPHREY. Thank you, Mr. Chairman. When you are
way down at the end of the table, as I am, and my colleague, Sena-
tor Simon, you think your turn will never come. It is like the 15-
year-old boy who can't wait to turn 16 so he can get his driver's
license. That last year seems interminable.
297
Judge Bork, my colleague from Wyoming, Senator Simpson, was
certainly on target when he said he thought Senators would be
unable, and others would be unable to resist the temptation to pick
at the old scab of Watergate. And, indeed, that scab has been
picked at in this room again, that very old scab, and I only want to
come to it for just a moment. Since it has already been picked at, I
hope to shed a little more light on that. So let me ask you a couple
questions about the role you played in the firing of Archibald Cox.
You said earlier that at the time you discharged Cox you had the
understanding from Eliot Richardson, the Attorney General, who
had been to the White House with President Nixon, that the Presi-
dent was determined at all costs to fire Archibald Cox. Am I right
in that?
Senator HUMPHREY. In fact, Eliot Richardson said, 3 days later at
press conference, that he found the President "absolutely firm"
about firing Cox. And therefore my question is, in your opinion,
was the President going to fire Archibald Cox no matter what you
did?
Judge BORK. Of course. Of course. He hadI didn't see the Presi-
dent that night, Saturday, October 20th, until after I had signed
the order discharging Cox. I had been discussing the matter with
Generalthen General Haig. But when I saw the President, he
was as gloomy and distraught a man as I have ever seen. He had
not wanted to pay the price of losing his Attorney General and his
Deputy Attorney General, and I think he wouldhe was now in a
position where he would pay the price of losing his Solicitor Gener-
alcertainly that wouldn't have bothered himin order to fire
Cox. That was quite clear.
Senator HUMPHREY. And if you had refused to fire Cox, what
would have happened?
Judge BORK. Well, it seems to me there was nobodyaccording
to the regulation in force at the Department of Justice, the succes-
sion regulation, I was the third and last person on that regulation.
So there was nobody behind me, by regulation, to step into my
shoes. That means the President would have had a free hand in ap-
pointing an acting Attorney General.
I suppose he would have learned, if I had resignedhe would
have known and he quickly would have learned, since I was the
first person without a promise to the Senate or other commitment,
the others would not have done it either, if I had resigned. I don't
think he would have even bothered to ask them.
The simple solution for him would have been to appoint one of
the White House counsel, probably, as acting Attorney General,
who would have fired Cox. And at that point, I don't think anybody
would have stayed with that acting Attorney General.
You must remember that there was great resentment in the De-
partment of Justice about Mr. Nixon already because he had de-
manded resignation letters when his newwhen his second term
started down as far as I think GS-16's or 15's. He made the really
unprecedented demand that all the top echelon sign resignation
letters, and they were not very happy with him. And if he had sent
in an outsider whom they did not know to discharge Mr. Cox, I
298
think there would have been massive departures. And Mr. Richard-
son thought so, too.
Senator HUMPHREY. And what about Ruckelshaus?
Judge BORK. I don't recall if he has ever spoken to that or not.
Senator HUMPHREY. Eliot Richardson, the Attorney General, ex-
pressed to you, before you discharged Cox, his opinion that the De-
partment would be reduced to chaos if you did not follow the Presi-
dent's orders.
Judge BORK. I don't recall the exacthas he been quoted lately
in the paper or something? I haven'tI don't recall the exact lan-
guage he used.
Senator HUMPHREY. But did Richardson speak to you on that ac-
count before you fired Cox?
Judge BORK. Oh, yes. We discussed this morning the first conver-
sation I had about this with Mr. Richardson and Ruckelshaus in
which they said, if you do it, don't resign. After he came back from
the White House late in the afternoon, he said someI didn't
regard this as urging me because I think he knew I was about to do
it. But he said, somebody has got to do it. It has got to be done and
you are the guy to do it.
Senator HUMPHREY. SO he, he encouraged youif ii was within
your own judgment to do so, he encouraged you to comply with the
order and not resign?
Senator HUMPHREY. SO Eliot Richardson, who is regarded as a
hero for having resigned rather than fire Cox, in advance of your
firing Cox advised you to fire Cox and to not resign; is that correct?
Judge BORK. Well, heI want to be careful about this because at
the time he said somebody has to do it and you are the guy to do it,
you are the fellow to do it
Senator HUMPHREY. YOU were the last one
Judge BORK. I was the last one.
Senator HUMPHREY [continuing]. In the hierarchy to
Judge BORK. But at the time he said that, he knew that I was
inclined to do it. So I wouldn't putI wouldn't put the responsibil-
ity for my actions upon Eliot Richardson.
Senator HUMPHREY. I wasn't trying to get you to do that.
Judge BORK. NO, I know you weren't, but I just want to be very
careful not to give that impression.
Senator HUMPHREY. I understand the distinction. But Eliot Rich-
ardson did confide to you that he thought it would be well if you
fired Cox and did not yourself resign as he had resigned?
Judge BORK. I think that is accurate. But I think he knew I was
going to do it when he said that.
I mean, I don't want in any way to rest upon Richardson as a
crutch for me. I doit is accurate to say that he agreed with my
assessment, but I didn't do it because Eliot said that.
Senator HUMPHREY. Before the fact?
Judge BORK. NO. That is right.
Senator HUMPHREY. Judge, I want to turn to the area of civil
rights. I was intrigued by the matter that Senator Heflin brought
up about the breaking down of barriers to Jewish lawyers or quotas
or some such thing at the law firm
Judge BORK. Um-hum.
299
Senator HUMPHREY [continuing]. Where you were employed. Can
you expand upon that? You were responsible for
Judge BORK. Well, I don't know that I destroyed the quota, but I
began the destruction of it andand there were other young
people like me. It just happened to be that I had talked to this
young man, who is even today a very good friend of mine. In fact,
he was the best man at my second wedding. I talked to this young
man whom I did not know but I liked, and it seemed to me grossly
unfair that he should be excluded from the firm on the grounds
that he was Jewish.
So Iand I went and talked to a classmate of his who was also
then at the firm. A man named Alan Oaks. And Oaks confirmed
me in my view of this fellow, and so I went to the senior partner,
two senior partners, and said you can't do this. You can'twe can't
operate a law firm that way. And one or two of them weren't too
happy, but they finally agreed. They said, we will give him a trial.
He was a great success.
Senator HUMPHREY. HOW long had you been at the law firm
when you approached the senior partners?
Judge BORK. I would guesslet's see. I would guess two years.
Senator HUMPHREY. TWO years. And you were approaching part-
ners who had been with the firm for how many years?
Judge BORK. Forty.
Senator HUMPHREY. Forty years?
Judge BORK. Well, but I had been working with them. I mean,
they knew me.
Senator HUMPHREY. Um-hum.
Judge BORK. I mean, it wasn't
Senator HUMPHREY. Well, nonetheless
Judge BORK. I didn't have to break in to see them or anything. I
mean, it was not that dramatic.
Senator HUMPHREY. Well, it is still impressive to me, at least,
that a junior member of the firm with 2 years' seniority only would
go and talk to veterans of 40 years who were very fixed in their
ways about changing an apparently longstanding policy at the
firm.
Judge BORK. I am just trying to think, Senator. You know, if it
turns outit may turn out to be 4 years I had been there. I can't
recall exactly when this young man came. But I don'tyou know,
something like 2 to 4 years.
Senator HUMPHREY. I am one of the three members of this panel,
Judge, who is not a lawyer, and I hope that maybe that will help
me to cut through some of this lawyerly fog which sometimes en-
shrouds this proceeding.
You have said, and I admire you for this because you not only
say it but practice it. You have said that judges ought toought
not to interpose their personal views when reaching decisions.
Nonetheless, I want to probe your personal views, and then we will
go and talk about your decisions a little later. I want to probe your
personal views.
Some of your opponents, particularly those outside this room,
have all but called you a racist. Maybe they have. I wouldn't be
surprised. But they have all but called you a racist. Let me ask you
300
how does it feel to be accused in front of your family and in front

of tens of millions of your fellow citizens of being a racist?
Judge BORK. Well, it doesn't feel too good, but my family knows
better and anybody who knows me knows better.
Senator HUMPHREY. Are you a racist?
Judge BORK. NO, Senator.
Senator HUMPHREY. What are your feelings about racism, about
racial discrimination?
Judge BORK. I have always said it was immoral. The only thing I
ever did was, in my libertarian phase, doubt that law should be
used to overcome private immorality. I have since decided that law
should be used to overcome that private immorality, but I have
you will never find in any of my writings anywhere, or any of my
statements anywhere, any statement or writing in any way sup-
porting or favoring racial segregation or discrimination.
Senator HUMPHREY. Well, of course, you are not a racist because
we examine the attitudes of nominees for the bench very carefully
in that respect. Our staff investigate a candidate's or nominee's
background very carefully in that respect, and you would not have
been confirmed unanimously to the second most important court in
this country 5 years ago if there were a shred of evidence that you
were a racist. And so I am just shocked and really disgusted at the
tactics of some of these groups which oppose you when they imply
and all but state that you are a racist.
Do you supportpersonally again. We will get to your cases in a
while. But personally, do you support all of the great civil rights
legislation?
Judge BORK. Yes. I think the Fair HousingI think the 1964 Act
really did an enormous amount to bring the country together and
bring blacks into the mainstream, and I think that is the way I
should have judged the statute in the first place, instead of on
these abstract libertarian principles.
I think the Voting Rights Act has been enormously successful in
improving the quality of black life, particularly in the South, be-
cause they became a voting group that politicians had to listen to
once they got access to the polls.
I think the Fair Housing Act was an extremely good statute. I
have no problem with any of those statutes now.
Senator HUMPHREY. Your opponents have remarkably exploited
the understandable concerns of black citizens on this subject, and I
regret that as much as I regret the de facto and the de jure dis-
crimination which existed for so long in this country against blacks
and other minorities. And I regret that very much.
We understand the concerns of women. We understand how un-
scrupulous groups can so easily exploit these concerns given the
fact that women traditionally, again de facto and de jure, have
gotten the short end of the stick in this country. I resent that prac-
tice, for the sake of my wife, as I am sure you do for the sake of
your wife; I resent it for the sake of my mother; I resent it for the
sake of my sister, and I resent it for the sake of our country, and I
know you feel the same way.
So let me ask you now your personal feelings about discrimina-
tion on the basis of sex.
301
Judge BORK. I have never remotely supported that, and it is un-
fortunate that these themes have been so confidently asserted by a
number of people.
I have here, and I intend to offer when Senator DeConcini is
here, the list of my Solicitor General briefs, amicus briefs, and the
list of my decisions in the area of race and gender on the court of
appeals.
It turns outI did not know this when I spoke this morning-^
but if you make a count, it turns out that in eight cases I voted for
the minority or the woman seven times. I do not know what more I
can do to dispel any fear that somebody might have.
Senator HUMPHREY. YOU are saying that in your 5 years on the
bench, eight cases have come before you
Judge BORK. On the merits, yes.
Senator HUMPHREY [continuing]. Involving civil rights?
Judge BORK. Yes.
Senator HUMPHREY. DO not enumerate them now, because I have
got them and I want to enumerate them.
Judge BORK. All right.
Senator HUMPHREY. But you are saying that in seven out of
those eight cases, you have ruled with the minority or the woman?
Judge BORK. Or the woman, or women, yes.
Senator HUMPHREY. That comports with my statistics as well.
I would repeat at this point before I ask you to tell us about
some of these decisions, that in discussing your personal feelings, I
do not mean to suggest that your personal feelings will or ought to
come into play when you act the part of the judge.
Judge BORK. NO, but people always suspect that they will, Sena-
tor; I have learned that.
Senator HUMPHREY. Yes. People suspect the worst. That is the es-
sence of judicial restraint, is it not? The essence of your judicial
philosophy is that judges should not interpose personal feelings or
biases?
Judge BORK. That is quite true. Fortunately, in the area of civil
rights, my personal views do not vary from nondiscrimination.
Senator HUMPHREY. Well, then, we have looked at the person,
however briefly. Let us look at Robert Bork, the judge. You have
participated in decisions on eight civil rights cases which have
come before you on the D.C. Circuit Court of Appeals. These were
cases where substantive civil rights claims were at issue. And as
you noted, you ruled in favor of the minority or the woman in
seven out of the eight cases, the entire universe, as Robert Bork,
the judge, seven out of eight cases. Do you know what that is in
decimal87.5, 87% percent.
And I am going to talk about the one where you did not rule,
because you were right there, too.
Judge BORK. I am sorry. I should say that there was one caseI
have seven out of eight casesParalyzed Veterans, I dissented,
saying that an airport was not covered by a federal program, and
the Supreme Court adopted my view.
Senator HUMPHREY. YOU have often been upheld by the Supreme
Court when you have been in the minority, haven't you?
Judge BORK. Yes.
86-974 0 - 89 - 12
302
Senator HUMPHREY. In fact, of all of the cases in which you par-

ticipated, in which you were a minority participantthat is, in
which you joined with the minority viewsome 25, I believe it is
right
Judge BORK. I think
Senator HUMPHREY [continuing]. Six of those have been success-
fully appealed to the Supreme Court, and the Court found you
right in how many of those six?
Judge BORK. I think, all of them.
Senator HUMPHREY. Six, that is right. Do you know what the per-
centage is, the decimal1.0000. Even when Robert Bork has been
on the minority side of the question, and when that case has come
to the Supreme Court, the Supreme Court has upheld the views of
Robert BORK.
Senator HUMPHREY. And so he has never been overruled, has he,
whether he has been in the majority or in the minority?
Senator HUMPHREY. Pretty damned remarkablepretty darned
remarkablewe all change on reconsideration. [Laughter.]
Senator HUMPHREY. NOW, some claim that all of this is irrele-
vant, that the record of Robert Bork, the judge, does not mean a
thing because circuit court judges are bound inextricably by Su-
preme Court precedent.
Now, I want to ask youI am not overlooking that charge, but I
hope to lay it to rest in the next few minutes.
Let us take issues of sex discrimination. In the case of Ososky v.
Wick in 1983, you voted to overturn the lower court, and you held
that the Equal Pay Actequal pay for equal work, ladies and gen-
tlemenyou held that the Equal Pay Act in fact applies to the For-
eign Service's merit system.
Judge BORK. Yes, I think
Senator HUMPHREY. Let me finish, and then you can expand on
itthat the Equal Pay Act requires equal pay for women, and you
ruled that the Act applied to the State Department. In other words,
you ruled in favor of a plaintiff who was a woman. And I would
like at this point for you to tell us something more about this case,
but before you do, let me say this is a "two-fer", if you will. Not
only did you rule in favor of the plaintiff who was a woman, but
this is a case where you ruled in favor of an individual against the
institution of the Government. And there is hardly a worse institu-
tion within that institution than the State Departmentbut that is
a political observation.
Now, would you tell us what you think more we need to know
about that case?
Judge BORK. Well, to tell you the truth, Senator, I have not re-
read that case for quite a while, and I just remember there was an
argument that the Foreign Service was not subject to the Equal
Pay Act, and we ruled that it was. The case, I think, was Palmer v.
Schultz.
Senator HUMPHREY. That is a similar case.
Judge BORK. Yes. Well, Ososky v. Wick, I think, was more the
question of whether solely on statistical evidence of promotions and
303
advancements and grades and classes, you could infer intentional

discrimination, and we held that you could.
I do not think either of those decisions was dictated by Supreme
Court precedent, but it certainly was in line with Supreme Court
precedent.
Senator HUMPHREY. Okay. Well, that comes to the point I
wanted to raise next. In ruling in this case, did you feel in any way
bound by Supreme Court precedent to reach your decision?
Judge BORK. I do not recall that I did, Senator. I think I felt
bound by the statute and by the
Senator HUMPHREY. Intent of Congress.
Judge BORK. Yes, and by the logic.
Senator HUMPHREY. SO you were not inextricably bound to reach
this decision in this case by Supreme Court precedent?
Judge BORK. Not at all. If I had a desire to reach a result con-
trary, I am sure I could have crafted an argument that would have
sounded moderately plausible, but I had no such desire.
Senator HUMPHREY. Okay. Now, if that is not good enough for
those who contend that your decisions on the circuit court are im-
material, let me ask you this. If the same case under the same cir-
cumstance came before you as a Supreme CourtSupreme Court
Justice, would you decide it the same way?
Judge BORK. My reasoning would be identical. It is a question of
whether the statute applies. I thought it applied when I was on the
court of appeals; I would think it would have applied on the Su-
preme Court.
Senator HUMPHREY. SO you are saying two things, that (a) you
had latitude as a circuit court justice in this case, and (b) even
where you would have had unquestioned latitude within the con-
straints of stare decisis and so on, that you would have ruled the
same way as a Supreme Court Justice.
Judge BORK. Yes.
Senator HUMPHREY. Well, I hope that satisfies the cynics. But if
it does not, we have got a few more to go through.
The next case was Laffey v. Northwest Airlines in 1984. In that
case, you upheld a lower court decision which found that an airline
had discriminated against women employees.
Tell us about that case.
Judge BORK. Well, as I recall that case, Senator, these were
stewardesses who could not get the job of purser. And as I recall
the job of purser, only men had that job, and it was a much higher-
paid job, and they would not let women be pursers. And as I recall,
there was really no significant, or maybe no difference in the
duties of stewardesses and pursers. So the Equal Pay Act applied,
and we directed that they determine the back pay awards by calcu-
lating total job experience.
Senator HUMPHREY. With interest?
Judge BORK. Yes, as I recall.
Senator HUMPHREY. Back pay with interest. And did you feel
somehow bound by Supreme Court precedent in this matter?
Judge BORK. Well, I cannot recall exactly what the precedent
was, but I remember sitting down with my colleagues and then
with my clerks and deciding that this is the way it had to come
out, and going through a process of reasoning; so I suppose I did
304
not feel that I was bound by Supreme Court precedent, but I

cannot swear to it. I have not re-read the opinion.
Senator HUMPHREY. I understand. Like legislators, you go
through a lot of business, and it is hard to remember all the de-
tails. But in any event the record shows that that is the case as
stated.
And just for the record, had you been a Supreme Court Justice
and that same case came before you, would you have ruled other-
wise?
Judge BORK. Identical; I would have given an identical result,
Senator.
Senator HUMPHREY. Let us take a case that will be of interest to
citizens who are homosexuals, or to all citizens who are concerned
about the legitimate rights of citizenswhich is most of us.
In the case of Doe v. WeinbergerSecretary Weinberger, that
isexcuse me. Let me back up, because I skipped one. And this is
one that you alluded to a moment ago. In 1987, in the case of
Palmer v. Schultz, George Schultz, of the State Department, you
ruled in favor of women Foreign Service officers who allege dis-
crimination by the State Department, and you overturned the dis-
trict court, the lower court, in this case.
Can you recall the details of that?
Judge BORK. Palmer v. Schultz?
Senator HUMPHREY. Yes.
Judge BORK. I do not recall the details, I am sorry to say. I just
remember that there was such a case and that weif you want me
to, I can overnight take a look at it
Senator HUMPHREY. NO, that is all right. If anyone else wants to
question you in detail, they can. Perhaps it is unfair for me to put
you in a position where I am asking you to recall the details. I was
just hoping that you could reinforce it a little bit.
Judge BORK. Well, sometimes, I donot always, though.
Senator HUMPHREY. In any case, the record clearly shows that
you overturned the opinion of the lower court, district court, and
found in favor of womenI think it was seven or eight in
numberwho alleged discrimination by the State Department.
And you agreed with them, you upheld them, you overturned the
lower court case.
Did you feel somehow unduly bound by precedent, Supreme
Court precedent?
Judge BORK. I do not recall that I did, Senator, but I do not
really recall much about the case, so I cannot be as enlightening as
I would like to be.
Senator HUMPHREY. DO you suppose if it had come before you as
a Supreme Court Justice, you would have ruled otherwise?
Judge BORK. NO, no. I must say that the case on the Supreme
Court for reading a statute consistently is very strong, even if there
were precedentI do not know if there was precedent.
Senator HUMPHREY. Okay. Now to go to the case of Doe v. Wein-
berger, you ruled in favor of a man who had been fired from the
National Security Agency for homosexuality. You ruled that he
had been unlawfully denied his right to a hearing.
305
Senator HUMPHREY. I will not ask you about the details of that,
but was that a decision you arrived at because you were bound by
precedent?
Judge BORK. No. We thought the regulation about what kind of a
hearing he would get, and the statute, I guess, pretty clearly re-
quired that he have a hearing before his security clearance was
lifted and he was discharged.
Senator HUMPHREY. Would you have reached some other conclu-
sion if it had come before you as a Supreme Court Justice?
Judge BORK. Not at all, Senator; the same conclusion.
Senator HUMPHREY. Okay. Let us look at race discrimination
cases. In 1987, the case of Emory v. Secretary of the Navy, you over-
ruled the district court which had dismissed the claim of racial dis-
crimination. In this case, a black officer charged that the promo-
tion board, which was comprised entirely of Caucasians, presented
a case of discrimination against him; he lost in the lower courts; he
won in the circuit court, where you sat.
Senator HUMPHREY. Here is another case of Robert Bork stand-
ing against the Government in favor of the individual, as well as
these others I have cited. And would you have reached a different
opinion if that case had come to you in your capacity as a Supreme
Court Justice?
Judge BORK. NO, Senator, I would not. I would reach the same
conclusion because it was clear that this man was entitled to go to
trial to try to prove discrimination. And it got dismissed before he
got to present his evidence.
Senator HUMPHREY. All right. In the 1984 case of County Council
of Sumter County, South Carolina v. United States, you held that
the county had failed to prove its new voting system had neither
the purpose nor the effect of denying or abridging the right of
black South Carolinians to vote.
Judge BORK. That is correct. I remember that case fairly well be-
cause it is the first time I sat on a three-judge district court and
took evidence. And we held not only thatthe first argument was
that the at-large election system involved in that case did not re-
quire pre-clearance by the Attorney General, and we held that it
did. And then we went on to hold that the county had failed to es-
tablish that the switch from a district system to an at-large system
had neither the purpose nor the effect of submerging the black
vote. So we ruled for the black plaintiffs in the case.
Senator HUMPHREY. Your finding was not based on the intention
to discriminate, but the effect of discrimination; is that not correct?
Judge BORK. Yes. Actually, the plaintiff was the county council,
and they were claiming that they did not have to be pre-cleared
and so forth, so it was their burden to show no purpose and effect,
and we said they had not shown the absence of either.
Senator HUMPHREY. In this decision, you were roundly criticized
by conservatives, weren't you?
Judge BORK. I do not recall.
Senator HUMPHREY. Well, you were.
Judge BORK. Oh, okay.
Senator HUMPHREY. Take it from me. But nonetheless, you
upheld the standard enacted by the Congress.
306
Judge BORK. Right.

Senator HUMPHREY. NOW let us talk about the exception. You
were with the minority person, or the woman, in seven out of eight
of the entire universe of civil rights cases you have handled as a
judge. Let us talk about the exception. That was the case of Rollis
v. Radio Free Europe/Radio Liberty.
Judge BORK. I am afraid that is not on my list. I guess we did not
classify it as a women and minority rights case.
Senator HUMPHREY. Well, maybe I have been given some incor-
rect information.
Judge BORK. I have one here
Senator HUMPHREY. Excuse me. This is a case of age discrimina-
tion, so I think it is valid in the context of the discussion we are
having here.
Judge BORK. Oh, oh, oh, yes, yes.
I guess my list is on women's and minority rights
Judge BORK [continuing]. And I guess we did not have age dis-
crimination as a minority rights case.
Senator HUMPHREY. Yes. Well, why not age? We have looked at
everything else, right?
Judge BORK. Fine, fine. I am at the mercy of the people who cate-
gorize these things for me.
Senator HUMPHREY. Yes. In any event, the plaintiff alleged
thatthe finding wasand from which you dissentedthe finding
wasI had better read this carefully, because it has been some
time since I looked at it.
[Pause.]
The CHAIRMAN. Senator, after this question, your time is up, but
keep going. I just want you to know
Senator HUMPHREY. Yes, I will just finish up very quickly.
The CHAIRMAN. GO ahead and finish the whole line if you would
like, but I just want you to know we are at 30, so we can go to Sen-
ator Simon.
Senator HUMPHREY. Fine.
The district court had dismissed an age discrimination case, and
you joined with the majority. In any event, your view was that the
Age Discrimination Act does not apply extra-territorially, is that
correct?
Senator HUMPHREY. DO you remember that case?
Judge BORK. That was Radio Free Europe, or something of that
sort?
Senator HUMPHREY. Yes, Radio Free Europe/Radio Liberty.
Can you fill in the details of the case?
Judge BORK. Oh, I just recall, I think it was an argument over
the meaning of the statute, its text and legislative history. And I
wish I could reconstruct it for you better than that, but I am afraid
I cannot. I did not even remember I was in the minority. It seemed
to me that the Act applied, as I recall, to the United States, but not
to Americans in foreign countries.
Is that accepted wisdom, that U.S. statutes don't apply extrater-
ritorially?
307
Judge BORK. That's a very complex field, and sometimesit de-

pends upon what Congress says, of coursebut sometimes Congress
doesn't make it clear either way and then you have a lot of pre-
sumptions and so forth to go through to figure out whether or not
the statute should be applied that way.
Senator HUMPHREY. The point I wanted to make is that in this
age case, where you did not find with the plaintiffs in the discrimi-
nation case, it sounds to me like a very reasonable interpretation
of the law.
Judge BORK. Well, Senator, I thank you for one thing. You have
just changed my statistics. Now it looks like I voted for the plain-
tiff in seven out of nine cases, rather than seven out of eight. I
hadn't included the age discrimination case in here.
Senator HUMPHREY. I had hoped to have the timeand I guess I
will wait until the next roundto talk about your efforts to uphold
civil rights in the capacity as Solicitor General.
Let me just ask very quicklyand I promise I won't prolong
thissome have alleged that this doesn't, either, that the Solicitor
General is working for a client. Can you tell us whether that is a
true assertion or not, or does the Solicitor General have some lati-
tude and, if so, how much?
Judge BORK. Well, he has latitude in different kinds of cases. If
he is working for the Government as a client, and there's a lawsuit,
I think my view of the Solicitor General's job is that he must take
the Government's position so long as it is intellectually and moral-
ly respectable.
If he is filing an amicus brief, I think he has more latitude, be-
cause he is speaking to the Court not for a client but about a posi-
tion that he thinks the Court should regard as making sense.
Senator HUMPHREY. Thank you very much.
Senator Simon.
Judge Bork, if it's any comfort to you, I'm the last questioner
here.
I might note that you have had read to you a few things that you
now disagree with. I did find this one sentence of yours in your
opinion in Oilman v. Evans. You say "Those who step into areas of
public dispute and choose the pleasures and distractions of contro-
versy must be willing to bear criticism, disparagement, and even
wounding assessments." My guess is you still will hold by that
statement here today.
Judge BORK. Yes, Senator. I hope that isn't a prelude to a wound-
ing assessment. [Laughter.]
Senator SIMON. One area that is of concern to me is an area
where you on the Court would have a great deal to say, where Con-
gress has to a great extent stayed out, and that is the whole ques-
tion of where we draw the line between church and state.
What we have evolved is a system that is basically very healthy,
both for religion and for government. I am concerned that we don't
make major modifications of it.
In 1984, in a speech at the University of Chicago, you talked
about the three tests that are used. Let me quote Justice Powell on
what is called the Lemon test. Justice Powell, in Wallace v. Jaffree,
308
wrote "I write separately to express additional views and to re-

spond to criticism of the three-pronged Lemon test. Lemon v. Kurtz-
man identified standards that have proven useful in analyzing case
after case, both in our decisions and those of other courts. It is the
only coherent test the majority of the Court has ever adopted."
In your speech at the University of Chicago, you talk about that
test rather critically. You say, if this text is accurate, "The third
test, no excessive entanglement between government and religion,
is impossible to satisfy. Government is inevitably entangled with
religion." You then talk about entanglement, though the third part
of the test is not simply entanglement but excessive entanglement.
Then in a speech at Brookings, in 1985, if this is correct, you say,
"Many observers expected a major recasting of doctrine. But the
Supreme Court this past term surprised them by adhering to the
old test. Eventually, however, we may see such a reformulation,
not because I think the attitude of the Court will changeal-
though, of course, it mayand not because of political pressures,
but because, as observers of this area commonly remark, present
doctrine is so unsatisfactory."
Then let me skip a few sentences. You say, "Constitutional doc-
trine cannot separate either religion in law or religion in politics."
Then I will skip several sentences, but I don't think I'm taking
things out of context. "A relaxation of current, rigidly-secularist
doctrine would in the first place permit some sensible things to be
done." And then I'll skip a sentence. You say, "I suspect that the
greatest perceived change would be in the reintroduction of some
religion into public schools."
Now, do these texts that I have quote you accurately, as far as
you know?
Judge BORK. Yes, they do, Senator.
Senator SIMON. What do you mean by this phrase, "I suspect
that the greatest perceived change would be in the reintroduction
of some religion into public schools"?
Judge BORK. There are only two cases I have ever criticized in
this area, and they're both very marginal cases. In this case, I
thought the Supreme Court had gone fairly far when it saidnot
unanimously, as I recallthat a school could not put up the Ten
Commandments in the school on the wall, even though it put un-
derneath the Ten Commandments the statement that "this is not
an endorsement of a religion; it's part of our cultural heritage", as,
indeed, it is fundamental to both the Jewish and Christian tradi-
tions. That's all I meant by that. It seemed to me it was getting a
little excessive, I thought.
The other thing I said, "some sensible things to be done"I was
talking about Aguilar v. Felton, in which, under a federal program,
the city of New York had public school teachers go into private
schools, including religious schools, to teach educationally deprived
children who were far behind in their subjects, remedial reading
and remedial arithmetic and so forth.
The program was conducted in rooms bare of religious symbol-
ism; the materials used had no religious content; there was no
interaction between the public school teacher and the religious
peoplethey often weren't even of the same faith.
309
That passed the first two tests of the Lemon test, secular in pur-
pose and did not advance religion, but it failed because they said
there was excessive entanglement since the city had to make sure
that religion didn't creep into the program. That struck me as kind
of an odd thing to strike down a program.
The lower court judge, who agreedHenry Friendly, a famous
judgewho agreed that the program failed the third aspect of the
Lemon test on excessive entanglement, because the city had to
police to make sure that religion didn't get into it, said that it was
a program that had done much good and little, if any, discernible
harm. So it seemed to me to be kind of too bad.
Now, there was some suggestion, I guess, that if they had taken
the children out of the school and walked them down the block and
into a trailer, they could have had the program. That seemed to me
a little odd.
But this area is full of line drawing and sometimes you think
they draw the line too far on one side or the other. I have not in
any way questioned, and would not in any way question, the basic
importance of the establishment clause in preventing the establish-
ment of religion, or the basic importance of the free exercise
clause. But sometimes, and it's often 5 to 4, a case like Aguilar or a
case like the Ten Commandment case doesn't seem to me as essen-
tial to prevent the establishment of religion. But, you know, that's
on the margin. I'm not talking about anything more than that.
Senator SIMON. Let me ask another question on line drawing,
without projecting how you might rule in the future. Let me give
you a very practical example.
When I served in the House, my colleague, Congressman Dan
Glickman, told me about when he was in the fourth grade. He hap-
pens to be Jewish, growing up in a community that was largely not
Jewish. Every day he was excused from the classroom while they
had a prayer, and then he was brought back in. Every day, all the
other fourth graders were being told that Danny Glickman is dif-
ferent, and yes, every day he was being told that he was different.
We have the Engel decision in 1962, of a prescribed prayer that
was to be required daily. The courts ruled that was unconstitution-
al. As you reflect on that, was that a sound decision?
Judge BORK. I have not ever thought through that subject. This
is not an area I ever taught. The reason I want to say that is that
the Washington Post carried a story that at the Brookings Institu-
tion, in the speech you quote, I had endorsed school prayer, which
is entirely false. But I thought I should bring to your attention,
therefore, two letters, one of which went to the Post, one of which
was printed and one of which was not. I would like to put these in
the record, but I would like to cite them
The CHAIRMAN. Without objection, they will both be placed in
the record.
[The documents follow:]
310
Thc> Brookings Institution

?75 MAStACNUflTTS **1MUI W" / WAJHINCTOM I t OOj6 / C t l l l l tlOOBINIT / TIIIPNONI (lOl ) 797'tOOO
Center for Public Policy Educutum
July 28, 1987
To the Editor
The Washington Post
Dear Madame:
I am quite concerned about the article of Al Kamen on Thursday,
July 28 which made reference to a Brookings Seminar for Religious
Leaders which Judge Robert H. Bork addressed on Thursday,
September 12, 1985. When Mr. Karaen asked me about the Seminar,
I replied that it was my understanding as the Chairman of that
meeting that the meeting was off-the-record. Since other attendees
have elected to report their recollections of the meeting, I
thought, in fairness, that I should also respond to their comments.
Whatever one's views are about Judge Bork's qualifications to
serve on the Supreme Court, he certainly is entitled to a thorough
and accurate review of his opinions. In examining my notes of
that meeting, I find no reference to any specific Supreme Court
decision, but only the expression of broad concepts and principles.
I find no opinion expressed by the Judge on the issue of school
prayer, but only the comment that the current turmoil in
constitutional law may force some revisions.
One must remember that the context of this session at Brookings
was the airing of a wide range of views on matters of Church and
State, in an aura of reconciliation not confrontation. While
Judge Bork was challenged frequently by members of the Seninar,
he responded with grace and an inquiring mind, and willingly
extended the discussion period well beyond its adjournment time.
Let the debate on Judge Bork's confirmation go forward on its
merits, ir. this same a\5>ra of the tenacious but gracious pursuit
of the truth:
/
War"ren I. Cikins
Senior Staff Member
311
THURSDAY, AUGUST 6,1987 . THE WASHINGTON POST
LETTERS TOTHE EDITOR

The Bork Nomination (Cont'd.)
It's a good tiring I was there when sees a need to give some public recog-
Judge Robert Boric met with a group of nition to the role of religion it our
clergy at a Brookngs Institution dinner history and national life, short of pro-
for religious leaders in September moting one or the other religious dog-
1985, because if I bad nothing but The ma or ritual under state auspicesa
Post's account of that evening (front policy that is now advocated even by
page, July 28], I would draw entirely the staunchly liberal People for the
wrong fjonciusions about Judge Bark's American Way.
views on church-md- state issues. JOSHUA 0 . HABERMAN
The Post's reporter was not pres-
ent at the meeting. I was. As a rabbi
with a strong commitrnent to the sepa- The Post is to be commended for
ration of church and state, I would have what appears to be a surprisingly
been greatly f Mm i f f if Judge Bork bad evenhanded series of articles on
expressed any twbYncy to move away Judge Bork by Dale Russakoff and Al
from our constitutional guarantee of Kamen [July 26.27.28J.
religious freedom and equality. I heard I now understand better why there
nothing of the sort has been such rabid opposition to
In feet, the jsdge showed great sensi- Judge Bark's nomination to the Su-
tivity to the ambiguities and djiptmnac preme Court. The judge has appar-
of the First Amendment During an ently committed at least two cardinal
extraordinarily long fictmnge with the sins: be kept an open mind as he grew
apnihLrf dergy, Judge Bork was cau- older and matured, and be "convert-
tious, yet candid and open-minded. Be ed" from BberaHsm/sncialism/leftism
threw back at us as many questions as to a philosophy reflected by the prag-
he answereda Socratic approach I matic old cache: if you're not a social-
found most stsnubong. ist at 20, you don't have a heart; if
I do not recall the judge's ever stat- you're stiD a socialist at 30 (or 40),
ng how be would vote on matters such you don't have a brain.
as prayer in public schools. Rather, I Judge Bork also apparently believes
gained the mpressxn that Judge Bork that if a kw or the Constitution
favors a pragmatic approach to the doesn't allow, or disallow, an action,
most controversal cfaurcn-and-state is- men a judge should not give or take
sues, with all sides developing more away. I find that hard to argue with.
flexibility. He sees a need to puD back But then I have tried to keep my mind
from the growing pohritaban on these irwn CfQftinR-
issues, which is highly damaging to the WALTER M.PICKARD
country and to refigkxis bodies. He also Alexandra
312
Judge BORK. The first is from Mr. Warren I. Cikins, who is a
senior staff member at Brookings and ran this seminar program at
which I spokeand he was there. Mr. Cikins doesn't say in the
letter, but he tells meand I'm sure he wouldn't mind my saying
itthat he's devout Jew. He kept notes. It's his program and he
kept notes of the evening.
He starts off by saying that he's quite concerned about the fact
that peopleit was off the record, meaning a give and takethat
people said what happened. He says:
Whatever one's views are about Judge Bork's qualifications to serve on the Su-
preme Court, he certainly is entitled to a thorough and accurate review of his opin-
ions. In examining my notes of that meeting, I find no reference to any specific Su-
preme Court decision but only the expression of broad concepts and principles. I
find no opinion expressed by the Judge on the issue of school prayer but only the
comment that the current turmoil in constitutional law may force some revisions.
One must remember that the context of this session at Brookings was the airing
of a wide range of views on matters of church and state, in an aura of reconcilia-
tion, not confrontation. While Judge Bork was challenged frequently by members of
the seminar, he responded with grace and an inquiring mind and willingly extended
the discussion period well beyond its adjournment time.
Since this is a serious matter, Senator, I do not come at this with
either a religious or an anti-religious bias. I come at thisBut this
letter, which was printed in the Post, is from Rabbi Joshua O. Ha-
berman.
He said:
It is a good thing that I was there when Judge Bork met with a group of clergy at
a Brookings Institution dinner for religious leaders in September, 1985, because if I
had nothing but your account from the paper of that evening's discussion, I would
draw entirely wrong conclusions about Judge Bork's view on church and state
issues. Your reporter was not present at the meeting. I was. As a rabbi, with a
strong commitment to the separation of church and state, I would have been greatly
alarmed if Judge Bork had expressed any tendency to move away from our constitu-
tional guarantee of religious freedom inequality. I heard nothing of the sort.
As a matter of fact, the rest of the letter is so laudatory that I
think it would be improper for me to read it, but I would like you
to read it, Senator. [Laughter.]
Senator SIMON. I shall.
Judge BORK. Because I have never taken a position on school
prayer, I have never taught the school prayer cases, I have never
written about it, I have never even fought my way through the
problem. The only thing I am convinced of is that the principle of
non-establishment is essential to our society, and I know the fram-
ers thought so, particularly with the memory of the religious wars
in Europe in mind, and I think the principle of free exercise is also
vitally important. But where the adjustments are made at the
margin is a question that goes case-by-case.
Senator SIMON. One of the things in this area that we also have
to do is to protect the rights of religious minorities, the Seventh-
day Adventists, Jehovah's Witnesses and so forth. Do you have any
reflections upon the Supreme Court decision on saluting the flag by
the Jehovah's Witnesses?
Judge BORK. I have never taught that case or thought about it.
May I say something, that there is so much in a constitutional
law casebook that in one semester you have to choose and select
pretty severely, so those are just areas that I never taught.
313
Senator SIMON. Let me just addand I think my colleagues
would agree, whether they happen to be for you or notthat you
have gone into much greater detail on cases than any recent wit-
ness that we have had before this committee.
Let me get into an area where I have some concerns with your
answers, both yesterday and today, and that is that I think I sense
a tendency to view the Constitution as fairly rigid, in terms of the
expansion of liberty. The Supreme Court is the basic guarantor of
liberty.
As we look at the application of it, wherever possible, that liber-
ty should be expanded. You mentioned Justice Harlan in the Gris-
wold case that Senator Biden mentioned. Justice Harlan in his
opinion referred to his earlier opinion in Poe v. Ullman.
Justice Harlan says, in a couple of sentences that I had never
seen before, that I think really are significant, and I'm going to use
them on other occasions in the future. In that opinion he says,
"Liberty is not a series of isolated points pricked out in terms of
the taking of property, the freedom of speech, press and religion,
the right to keep and bear arms, the freedom from unreasonable
searches and seizures and so on. It is a rational continuum which,
broadly speaking, includes a freedom from all substantial, arbi-
trary impositions and purposeless restraints." That's pretty power-
ful, pretty eloquent.
Judge BORK. Yes.
Senator SIMON. It seems to me, as we look at some of these cases,
that we have to look at how liberty can be expanded without doing
harm. One point, in a speech at Berkeley in 1985, you sayand I
would be interested in any comments you have here"What a
court adds to one person's constitutional rights it subtracts from
the rights of others." Do you believe that is always true?
Judge BORK. Yes, Senator. I think it's a matter of plain arithme-
tic. I think our Constitution gives a constitutional right or a liberty
in areas where the Bill of Rights or the Civil War amendments
don't prohibit it, of citizens to sit down and elect their representa-
tives and make their laws.
If a court strikes down such laws on behalf of a plaintiff claiming
a liberty, it automatically deprives the first group of its liberty. So
what you're talking about here is a redistribution of liberty.
Now, that seems to me to be arithmetically solid. I don't think
there is any way you can get around it. But if the Constitution says
the majority doesn't have that liberty, they shouldn't; where it says
they do have that liberty, it should.
Senator SIMON. But that arithmetic equation isn't always quite
true. In other words, if you give slaves freedom, I suppose, using
your analogy, you then take away the freedom of slave owners.
Judge BORK. That is a redistribution of liberties, commanded by
the 13th amendment to the Constitution. I certainly have no objec-
tion to a redistribution of liberties whenever the Constitution re-
quires it or authorizes it. No objection whatsoever.
What I was talking about was judges who make up new liberties
and say that they are expanding liberty. Well, they are for some
people, but they're contracting it for other people. That's all I was
saying.
Senator SIMON. All right.
314
We have talked about the 1954 Brown decision. In 1954 you were
an attorney for one year. Do you recall what you thought about the
Brown decision at that point?
Judge BORK. Yes, I did, but I thoughtI was not an attorney. I
was working then onEdward Levi hired me as a research associ-
ate on what he called the antitrust project. That's where I picked
up the basic economics such as I got.
I recall that in law school, I think it was argued and then rear-
gued, and I always thought it would come down the way it did. I
must confess that at that time it seemed to me good enough that it
would come down that way, because that was the moral result.
That's all I needed.
Since then I have tried to give a rather more sophisticated con-
stitutional support for the case.
Senator SIMON. What about the 1942 decision of the Court on
Japanese Americans? I mention this because I recall my father
we lived in Eugene, Oregon thenI recall my father, speaking up
and saying this is wrong to do to Japanese Americans. And I re-
member so few people standing up, it was a very unpopular stand
my father took, and I remember that even as a very young boy,
thenthe Court failing to stand up for Japanese Americans.
Judge BORK. They certainly did, they certainly did. It failed, and
I think that case has been regarded as a constitutional disaster
ever since.
It was a periodI guess when the interning took place, I must
have been around 15 or 16, and I lived in the East, so I do not have
any first-hand experience with it. But I do recall that there was
considerable hysteria about the war, and about rumors of what was
going to happen on the West Coast with sabotage and invasion, and
I think that was probably accelerated or multiplied by racial ani-
mosities as well, and the Supreme Court should have made sure
that something real was going on, which it was not. There was no
real espionage or sabotage program.
The Supreme Court took the word of some authorities for it, and
that was that. And I think that was a constitutional disaster.
Senator SIMON. And as you examine Robert Bork, if you are in a
situation where you are demanded to make a very unpopular deci-
sion, but it complies with the Constitution, is your personal consti-
tution of such a nature that you can make such an unpopular deci-
sion, as it would have been in the case of the Japanese Americans?
Judge BORK. I think so, Senator, because as you may have no-
ticed in these hearings, I have been taking unpopular positions fre-
quently in my life. I remember when I was one of the only two pro-
fessors at all of Yalenot the law school, but at all of Yale, in a
faculty of 2,000who would admit to being for Goldwater. And
every morning as I walked in to work, I had to have 15 arguments,
and by the time I got to my office I needed a shower again.
NoI have been in a minority position many times. I do not love
it, but I am not afraid of it.
Senator SIMON. I had my staff dig out the Dred Scott decision,
and I read the majority opinion by Justice Taney. It sounded an
awful lot like Robert Bork in terms of saying we cannot read into
the Constitution what is not there, when they denied free blacks
the right to be citizens.
315
Judge BORK. Well, Senator, I take that a little hard. That does
not sound a lot like Robert Bork. It happens to be that the Dred
Scott decision, I think, is the first time the doctrine of substantive
due process was raised by the Supreme Courtsubstantive due
process being the doctrine that the due process clause imposes
limits on government, and the Court makes it up. It is one of these
free-floating things again which the Court used in the past to
strike down economic regulation.
Chief Justice Taney in Dred Scott said that it would be a viola-
tion of the due process clause to take away a black slave from a
white owner.
So you see, these doctrines which give judges power to make up
their own constitutional law, which was what Taney did in that
case, do not always produce results that today we think are fine;
sometimes, they produce disastrous results. And Dred Scott pro-
duced a disastrous result not only for Dred Scott, but for the
Nation and helped to lead up to the Civil War.
Senator SIMON. Let me just quote the Chief Justice at that point.
"It is not the province of the Court to decide upon the justice or
injustice of the policy or impolicy of these laws. The decision of
that question belonged to the political or lawmaking power, those
who formed the sovereignty and framed the Constitution. The duty
of the Court is to interpret the instrument they have framed, with
the best lights we can obtain on the subject, and to administer it as
we find it according to its true intent and meaning when it was
adopted."
Judge BORK. Senator, anybodythe Devil can quote scripture,
and Taney can talk about original intent, as people did. But the
fact is he used the due process clause in a way he never should
have used it, against the black man, and Curtis' dissent, I think, is
the original intent position in that case.
Senator SIMON. Let me ask one more on the Griswold case. The
ninth amendment grew out of Hamilton and others questioning
whether the rest of the Bill of Rights was going to be so explicit it
would deny other rights, and so Madison wrote the ninth amend-
ment.
In theory, if the State of Connecticut can ban contraceptives,
could not in theoryand you are a legal theoristcould not in
theory the State of Connecticut require the use of contraceptives?
Judge BORK. I may be a legalI doubt that I am even a legal
theorist; I engage in legal theory from time to timebut I do not
usually engage in legal theory instantly. I never thought about a
statute requiring the use of contraceptives, nor do I know exactly
how you would police it or what you would do with it. And I do not
want to imagine how you would police it.
Senator SIMON. That is a problem with the original law, of
course, too.
Judge BORK. Yes.
Senator SIMON. But my concern is that I do not want someone on
the Court who is going to be so rigid in the application of liberty
that there is not some expansion and growth in liberty for the
people of this country.
Judge BORK. Let me put it this way, Senator, and this is the best
I can do. If you will read those casesI have got a good voting
316
record on civil rights and constitutional rights and so forth, but if
you will read the one essayI wrote an extended essay on this,
largely because my good friend, now Justice Scalia, was going the
other way on the case, and we got into a wrangle about itand
that is Oilman v. Evans, in which I apply and expand a first
amendment freedom for the press. I do not believe that constitu-
tional freedom should be given a narrow or a crabbed construction,
and I have never given such a narrow or a crabbed construction to
them. In fact, just the other day, I think a case came down on the
double jeopardy clause in which I reversed a new sentence on
double jeopardy grounds. That, I should say, before somebody
makes the accusation that has been made, that was a case that was
voted on and assigned to me long before this nomination came up,
assigned to me by Judge Mikva, who was the senior member of the
panel.
You look at my opinions, and you will see no reason to expect
any crabbed or narrow interpretation of any clause. And those
clauses have to evolve as circumstances and technologies and other
things change, so that they are continued to be given their full and
fair value.
But, Senator, I must confess, if you say to me here is an outra-
geous statute, and that is all the lawyer can say to me, that is not
enough for me to strike it down. It may be one of the worst stat-
utes the world has ever seen. Well, why should I engage in hyper-
bole myself? It may be just a terrible statute, and you and I would
agree that no civilized community could really live with a statute
like that. But unless I as a judge, unelected, unrepresentative, have
a warrant in the Constitution, fairly applied, fairly interpreted, I
will not strike it down because I regard it as outrageous.
Senator SIMON. And I would not want you to. But I guess I would
want you to do what Justice Harlan referred to in that Poe v.
Oilman case that I read just beforelet me read it just once again.
"This liberty is not a series of isolated points, pricked out in
terms of the taking of property," talking about the use of the word
"liberty" in the 14th amendment, "the freedom of speech, press
and religion, the right to keep and bear arms, the freedom from
unreasonable searches and seizures, and so on. It is a rational con-
tinuum which, broadly speaking, includes the freedom from all sub-
stantial, arbitrary impositions and purposeless restraints."
Judge BORK. That, I thinkthat purpose, I think, can more use-
fully be servedand I hate to bring this up againby a reasonable
basis test under the equal protection clause, because if you get an
unreasonable restraint or a purposeless distinction, it is not going
to meet a reasonable basis test. And I suppose I should fill that out
by saying that I think the Court, using the reasonable basis test
which Justice Stevens does, and maybe some others doI think I
would come out just in about the same position that the Court is in
on such matters as racial discrimination, gender discrimination,
and so forth. I just regard it as a much more satisfactory methodol-
ogy than this each group has its own tier of analysis kind of consti-
tutional theory that we have now.
But I do not think the results would differ substantially. I cannot
think of a Supreme Court gender discrimination case that would
come out differently in my mind under a reasonable basis test. And
317
I think that is a better constitutional methodology to accomplish
what Justice Harlan was saying there than is a substantive due
process methodology.
Senator SIMON. I thank you, Judge Bork, and Mr. Chairman.
Judge, I know you will be pleased to know that is it for today.
We have finished one round of questions from myself and all of my
colleagues. Tomorrow, we will resume at 10 o'clock, and with a
little bit of luck, we will be able to finish tomorrow. But again, why
don't you and I confer. We will probably break around noon or one
again tomorrow, and we will confer to see how late we go, if we
have to go.
Senator LEAHY. Mr. Chairman, what will be the procedure to-
morrow on time?
The CHAIRMAN. The procedure tomorrow, my view would be that
since a number of Senators have indicated that they thought they
were going to have substantial questionsI do not mean to imply
there is anything new, I mean, to go back over material, or new
material; I do not knowthat we would stick to the half-hour. If
Senators do not wish to use the whole half-hour, they don't have to;
if they wish to use the half-hour, they can. Hopefully, that will
allow all the questions to be asked at that time. But it will be the
half-hour again.
Is that all right with you, Judge, the half-hour question period?
Judge BORK. Oh, yes, that is fine.
The CHAIRMAN. Fine. With that, the hearing is adjourned until
tomorrow morning at 10 o'clock.
[Whereupon, at G:05 p.m., the committee was adjourned, to recon-
vene Thursday, September 17, 1987, at 10 o'clock a.m.]
THURSDAY, SEPTEMBER 17, 1987

U.S. SENATE,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in room
SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr.,
chairman of the committee, presiding.
Also present: Senators Thurmond, Kennedy, Metzenbaum,
Leahy, Heflin, DeConcini, Simon, Hatch, Simpson, Grassley, and
Humphrey.
The CHAIRMAN. The hearing will come to order.
We welcome back Judge Bork. With a little bit of lucklet me
be more precise. With a lot of luck, we can have you home tonight
and not have to come back.
I would like to suggest how we are going to proceed the remain-
der of the day. I am going to start the second round of questioning.
We will use the same format, a half hour for each of my colleagues
in order of those who wish to ask a second round, and I do not
know about you, Judge, but every hour and a half or so I would
like to take a break since you and I and most of us have to sit here,
if that is all right with you.
Judge BORK. Sounds good to me, Mr. Chairman.
The CHAIRMAN. Okay. Then that is the way we will go if we can.
Judge, I would like to go back to questions that I started with
you on Tuesday, and I suspect you are going to find that happening
with all of us going back to where some of us left off. It is kind of
hard to go bouncing back and forth like this, I realize so if there is
anything you do not understand about my asking and you want to
slow it down, just holler.
I asked you about the, quote, "dozens of cases" that were wrong,
that the Supreme Court decisions were wrong, and you said in re-
sponse to me that you would have to go back and start through the
case books again to pick out what they were so we did not get to
discuss really the dozens of cases that were wrong, and it is an area
that is important because I think it ties into what I think you have
sensed on both sides of the aisle here into this question about
precedent and how binding precedent is, how important it is.
Many of my colleagues have expressed concern that decisions
that we have come to accept may be upset. So I would like to begin
this morning by talking about precedent.
(319)
320
Judge, you said when you testified before this committee, and I
mentioned this before, back in 1982 that "a judge ought not over-
turn prior decisions unless he thinks it is absolutely clear that the
prior decision was wrong and perhaps pernicious."
Now, again, I am not trying to nail you to quotes but just the
ideas. You said yesterday in your response to questions from Sena-
tor Specter that the substantive due process clause which, I might
add, is the place from where the general right of privacy has been de-
rived that I like and you do not like too much, not that you do not
like privacy but you do not like it being found in the 14th amend-
ment; that you indicated that substantive due process was "perni-
cious." You used that phrase again yesterday.
Based on your own standard about what you do when a case is
pernicious, it seems to me that the entire line of privacy decisions
would be in some jeopardy. It is through the right of privacy that
the Supreme Court protected married couples in their decisions
and found a "marital right to privacy."
It is through the right of privacy that the Court protected the
right of a grandmother to live with her grandsons in spite of an
ordinance saying that you had to be a nuclear family. It is through
the right of privacy that the rights of a father to see his children
have been protected.
What has been protected, in other words, are, at least from my
perspective, important and fundamental liberties that, in my view,
predate the Constitution. I have them because I exist, at least from
my point of view.
Now, if the decisions recognizing these rights and liberties, some
of the ones I mentioned, are as you put it, perniciousand you did
not say they were pernicious; you said using the due process clause
was perniciousif they are pernicious, then I have a problem.
It seems to me that the cases, some of which I mentionedI did
not mention the case names, but the subject matter in those case
then those cases are up for grabs. So what I am trying to get a
sense of is putting your view of when a case is wrongly decided or
pernicious then a Supreme Court Justice should overturn it and
you are labeling the due process clause and finding the due process
clause, within it a right to privacy, as pernicious.
Putting them together, and I am not trying to play with words,
putting them together, it seems to me that you arebound may be
the wrong word, but at least would be inclined intellectually to
overrule these decisions or similar decisions that will come up, and
there will be similar decisions off all these issues, you might rule
that the "right does not exist."
Could you comment on that generally?
Judge BORK. I would be glad to, Mr. Chairman.
The clause of the Constitution to which you refer, and I seem to
have left my copy in the briefcase, says that no person shall be de-
prived of life, liberty or property without due process of law.
It seems to me historically clear that that is a clause that pro-
tects procedures. You are entitled to fair procedures before you are
deprived of anything. Its only substantive content is that it is used
to incorporate most of the Bill of Rights which originally applied
only to the federal government, it is used to incorporate most of
321
the Bill of Rights against State governments with which I have no
quarrel.
But there is yet a third meaning which is that judges decide
when they do not like a law that somehow due process has a sub-
stantive content other than incorporation by which they can make
law.
The CHAIRMAN. If they begin to define what liberty means for
them.
Judge BORK. That is right. Applying it against legislative action,
and I think I mentioned yesterday, and I brought it because there
is a good discussion of it in this book by Professor David Currie, I
think the first use of substantive due process came in the Dred
Scott decision, a case in which a black slave claimed that he had
become free because he had entered into territory where the Mis-
souri Compromise forbad slavery.
Chief Justice Taney ruled against the black slave, and he said
thisthis is the first use that I know ofhe said an act of Con-
gress which deprives a citizen of the United States of his liberty or
propertyhe is talking about the slave masteran act of Congress
which deprives a citizen of the United States of his liberty or prop-
erty merely because he came himself or brought his property into a
particular territory of the United States and had committed no of-
fense against the laws, could hardly be dignified with the name of
due process of law.
What Taney did was decide that an act of Congress forbidding
slavery in certain territories was unconstitutional under the due
process clause. I just want to point that out because that indicates
that the due process clause when it is used substantively has every
capacity to be pernicious.
I would like to go on with the cases you mentioned, if I may, Mr.
Chairman.
The CHAIRMAN. Please, yes.
Judge BORK. We are using the word "pernicious" in two senses
here. When I said in my prior hearing which was not a prepared
statement, just response to a question, that a case should not be
overruled unless it was clearly wrong and perhaps pernicious, "per-
nicious" I meant there in the sense of capable of having dynamic
force, generative force, that would produce new wrong decisions.
There are some cases that may have been decided on the wrong
rationale but that rationale has never been extended anyplace else,
and there is no particular point in overruling a case like that. It is
there and so forth.
The CHAIRMAN. Well, some of the cases I mentioned, though, I
think, for example, in the Franz case, although you were a circuit
court judge, but you were worried that that may be a pernicious
case because there you are extending a right of privacy to an area
that had not been extended before. Would that qualify as one of
those cases under the second definition of pernicious?
Judge BORK. NO, I do not think so, Senator. The Franz case, my
entire concern was not to face the constitutional issue because I did
not think Congress had faced the issue before us. The issue before
us was the Congress' witness protection program, and as we men-
tioned the other day, in that a woman who was divorced but had
children remarried and remarried a criminal who testified for the
322
government and the government hid him from everybody, new

name, new identity, et cetera, new location, and she went with him
with her children, and the father of the children could not find
them.
Now, it was not necessary it seemed to me to go right to the con-
stitutional question because under Pennsylvania law, it looked as if
the father had a right under State law to visit his children, and
there was no evidence that Congress had thought about that prob-
lem and decided to preempt or wipe out State law on the subject.
I wanted to remand for consideration of that question and in my
opinion, I was trying to call the problem to the attention of Con-
gress so that Congress could decide initially whether it wanted to
wipe out those rights.
Then I would have faced the constitutional question if it had
come back.
The CHAIRMAN. What did you meanI do not have the language
in front of me. I cannot find it, but I am trying to remember, "em-
barking on a chartless sea"?
Judge BORK. Well, see, the father may have had constitutional
rights, but if I recall the case correctly, was the majority using a
substantive due process approach?
The CHAIRMAN. I believe so. Yes, I think so.
Judge BORK. Well, as I said, I do not like substantive due process
because I think it leaves judges free to legislate.
The CHAIRMAN. That is the point I am trying to get to. Here is a
case where the majority used substantive due process.
Judge BORK. Yes.
The CHAIRMAN. And it seems to me that to fall within the defini-
tion, your second definition, or maybe that is the wrong way to
phrase it, your second usage of the word "pernicious" which, as I
understand what you said, you said, "A case is pernicious when, in
fact, its progeny might continue the bad." It seems to me this is a
perfect example of that.
Judge BORK. Well, justI am sorry. Go ahead, Mr. Chairman. I
have a bad habit of answering before somebody is finished ques-
tioning. I am sorry.
The CHAIRMAN. That is all right. Sometimes it helps me because
my questions are not all that good sometimes. So go ahead and
answer what you think I am going to ask. I think that as I under-
stand you, your criticism of the majority beyond the issue that the
Statethere are several points that you make.
Judge BORK. Yes.
The CHAIRMAN. One is you say, "Hey, look, let the state decide
this first before we go jumping in." And then you say, "And by the
way," which is totally appropriate, in a sense intellectually chastis-
ing your fellow members on the court who are the majority, you
kind of slap their hand and you say, "Now, look, you are embark-
ing on a chartless sea here. You are using substantive due proc-
ess." And again we are sounding like lawyers which we both are,
but substantive due process means, to make sure we all understand
it, that a court is saying, liberty means the following.
Judge BORK. Yes.
323
The CHAIRMAN. Or life means the following, pursuit of happi-

ness. They are going in and making a value judgment as you would
say from your neutral principles article.
Judge BORK. Yes.
The CHAIRMAN. NOW, this is a place where the court did extend
substantive due process beyond where it had ever been extended
before, and you pointed out they were embarking on a chartless
sea.
It would seem to me that is one of those cases that are pernicious
by your definition because you said, "Look, if they are going to be
going out and extending this due process thing, then that is perni-
cious." Is that right?
Judge BORK. Yes. I did not decide because I did not think I had
to decide since I thought the states and Congress should initially
decide it, that there was no constitutional right in that case. I did
not like the substantive due process approach because there is no
guidance from anything in the Constitution about that.
I should say that the substantive due process approach has been
severely criticized by Hugo Black, Felix Frankfurter and a number
of justices on the Court because it is without guidance for judges.
But in Franz I did not say there was no constitutional right. I
just said we did not have to reach it yet, and if we did reach it, we
should not reach it through substantive due process.
The CHAIRMAN. I should also point out, as you well know, that
distinguished jurists like Harlan, Jackson, Cardozo, Frankfurter,
Burger and Powell all at one time or another have used substan-
tive due process as you know.
Judge BORK. Or the concept of ordered liberty which is not quite
the same thing.
The CHAIRMAN. Both of which you reject.
Judge BORK. The concept of ordered liberty I do not know about.
That comes out of Palko v. Connecticut, and I have never really
made up my mind about it.
The CHAIRMAN. NOW, let me move on here.
Judge BORK. May I add something, Mr. Chairman. It just sudden-
ly occurs to me.
The CHAIRMAN. Please do.
Judge BORK. We are talking about this line of cases, and you sug-
gest some cases in which the result the Court reached is certainly
very appealing, including the Franz case. The result is appealing.
In that kind of case, where we are talking about a father's rights
to see his children. We are talking about a grandmother's rights to
live with her grandchildren and so forth, I have not approached
those.
But I would certainly, and while I do not like substantive due
process, I would certainly as a judge do my utmost to see if there is
a legitimate constitutional ground to uphold that freedom. I think
that is a judge's duty.
The CHAIRMAN. I do not doubt you would attempt to do that.
What I doubt is, based on your writing and your cases, whether or
not your philosophy of the law and the integrity with which you
apply it, and I mean that sincerely, would allow you.
By the way, Judge, I have no doubt in my mind, none, that
whether it's Griswold or Franz that you personally would like to
324
have a decision that said, "Hey, look, Connecticut should not be

able to tell a married couple or any couple whether or not they can
use birth control." I believe that.
Judge BORK. Well, I am glad. That is all I was trying to make
clear.
The CHAIRMAN. AS I said at the outset, the disagreement that
you and I have relates not to you as a man, not to your personal
views, but to your judicial philosophy, because I think you are a
man of integrity and you are applying a judicial philosophy with
which I think I havejust as you had strong disagreement with
the majority on the court on substantive due process, I have strong
disagreement with you and your dislike of it.
Judge BORK. Yes.
The CHAIRMAN. NOW, having said that, let me move along the
same lines to this notion that has come up in the past of core ideas
that people mention. Let me be more specific.
Yesterday you indicated that although you did not like the gen-
eralized right of privacy or use of substantive due process, you time
and again pointed out that certain core ideas were protected and
they were protected in first amendment you pointed out, privacy.
First amendment, fourth amendment, fifth amendment, eighth
amendment. You went down the list.
Now, what I would like to ask you is this. If Justices Harlan,
Powell, Frankfurter, Jackson, Cardozo had found a fundamental
right of privacy or a fundamental liberty to be protected under an-
other specific amendment to the Constitution, there would not
have been any occasion to see that the Constitution also contains
the basic right of privacy.
Obviously they could not find it in any single amendment. There-
fore, my question is putting aside all the specific amendments you
have mentioned either now or during the past several days do you
believe that the Constitution recognizes a marital right to privacy?
Judge BORK. A marital right to privacy? I do not know. It may
well. I have seen arguments to that effect, but I have never investi-
gated that. It is certainly one that I entirely agree with. I mean, I
agree with the concept, and I think it is very important that it be
maintained.
But I have never worked on a constitutional argument in that
area.
The CHAIRMAN. AS you know, in Griswold, for example, both the
concurrent opinion and the lead opinion uses and refers to a mari-
tal right of privacy.
Judge BORK. Yes.
The CHAIRMAN. And it seems to me, Judge, that you can't find
that marital right to privacy in the first, the fourth, the fifth, the
eighth amendments. The only place you can find it, that anybody
has been able to find it, is either in the ninth and/or in the 14th
amendment, and both of which either through substantive due
process or through the ninth amendment, you reject"reject" may
be the wrong wordyou are very leery of the use of the ninth
amendment at all as you have outlined for us, and you don't like
substantive due process.
So quite frankly, Judge, I don't see how you can findyou, and
by your theory, a marital right to privacy.
325
Judge BORK. I have two answers to that. Let me just clear up the
ninth amendment business. If somebody shows me historical evi-
dence of what they meant by the ninth amendment, I have no
problem using it. I just don't know the historical evidence.
You mentioned a book. I have not read it.
The CHAIRMAN. I know, but at some point, because I do not want
to take the time of the hearing, at some point I really would like to
know fully and sit down with you. It would be an education for me,
and maybe I could even show you something on the ninth amend-
ment.
Judge BORK. All right. As to the marital right of privacy, I think
it is essential to a civilized society. I do not know of any state, in-
cluding Connecticut, that has ever tried to interfere with it because
even the law in Connecticut was never usednobody ever went in
an arrested a married couple for using contraceptives or even
threatened it, and I do not think it could be enforced given the
fourth amendment and given the lack of enforcement.
So I don't know offhandI cannot construct just sitting here a
constitutional argument. Maybe I could if I spend a few days at it,
but I don't think it is a live issue because no state has ever tried to
enforce such a law.
The CHAIRMAN. Well, as I said earlier, Judge, we are going to see
a lot of things start to come up in the law that we are going to
have to face that are going to relate to marital rights to privacy,
just the way technology is changing and we are going to have ev-
erything from legislation I predict to you in the next 20 years on
everything from test tube babies to cloning to
Judge BORK. I think we are, and I do not know what the answer
to that is because I have never thought about it, but no state has
ever tried to stop married couples from using contraceptives.
The CHAIRMAN. I am not just talking about contraceptives.
Judge BORK. I know.
The CHAIRMAN. I was talking about the broad right or marital
right to privacy. Now, let me move on because I only have 10 min-
utes left.
I would like to move to another area where your publicly stated
views would affect what I consider to be strongly established Su-
preme Court precedent. It does not necessarily mean you would
overturn them, but they conflict.
Judge, you explained that you no longer hold to some of the
views you expressed in an 1971 article in the Indiana Law Jour-
nalby the way, that is probably the most purchased law journal
in America now. I mean, they are probably going back and making
reprints of that like they never have.
Judge BORK. I wish I had kept the copyright, Senator.
The CHAIRMAN. In particular, you said that you no longer agree
with some of what you said about the first amendment in that arti-
cle, and I believe you said that you first began to move away from
these views in 1973 when you were at your confirmation hearings
as Solicitor General.
Judge BORK. Publicly.
The CHAIRMAN. In a 1971 article you drew a bright line you said
that only speech protected was explicitly political speech, and you
326
have said at some length yesterday that you now think that that
bright line was wrong.
But it seems to me that as of 1979 and 1985, you had drawn a
new line, not as bright, but a new line. Your new line, it seems to
me, by some of the testimony yesterday and what I have read,
seems to me would protect more speech than your old line did but
not nearly as much as the currently Supreme Court does.
In your 1979 speech at Michigan, you explained your view that
political speech is at the core of the first amendment, and you
spoke to that yesterday, and you went on to say, and I quote, and
again I do not want to hold you to a specific quote but it is the idea
that is expressed.
If you just let me go through my thing, you might be able to ex-
plain it here. You said, "But there is no occasion on this rationale
to throw constitutional protection around forms of expression that
do not directly feed the democratic process. It is sometimes said
that works of art or indeed any form of expression are capable of
influencing attitudes, but in these indirect and relatively remote
relationships to the political process, verbal or visual expression
does not differ at all from other human activities such as sports or
business which are also capable of affecting political attitudes, but
are not on that account immune from regulation."
In a 1985 interview with the California Lawyer, you told the
interviewer about an argument with Professor Harry Kalven. You
said Professor Kalven argued that the first amendment should be
interpreted by, and I quote, "starting with political speech and
moving all the way out to paintings, statutes, dancing and so forth.
Anything that is expressive is protected." That was Kalven.
This was the view, you said, of Professor Kalven with whom you
had said you disagreed. You went onto tell the interviewer, and I
quote, "that it seems to me that to be able to level a generality
that goes well beyond what the framers intended, I doubt if they
intended to protect some forms of dancing from regulation."
Now, as I understand it, that meant that you believed that the
first amendment only protected speech that related to politics or to
the political process. It did not have to be speech explicitly discuss-
ing politics. It did not have to say it was dealing with politics, but
it had to be related to the political process.
That was not your 1971 view but it was your 1979 and 1985
views. That new line, it seems to me, you have drawn. Now, that
view, quite frankly, troubles me. All sorts of artistic speechpaint-
ings, hanging a nude in a gallery or your home of some great
artist, dancing, the Joffrey Ballet or any other ballet that some are
more expressive than others and in some conservatives their attire
somehow is viewed as being provocativehave nothing to do with
politics, that is, paintings and dancing.
But they are still, in my view, very important and I believe pro-
tected by the first amendment. I do not believe that State legisla-
tures or any government body should be able to sensor or suppress
expressions just because it is unrelated to expression of a political
notion.
I am not talking about obscene expression. I am talking about
nonpolitical expression like, as I said, the American Ballet Compa-
ny, Reuben's nudes, or dancing on American Bandstand.
327
Now, under your 1985 theory, Judge, the government, as I see it,
a government, a county council, city council, State, could sensor
this nonpolitical speech. Is that still your view and do I have that
correct?
Judge BORK. When I said some forms of dancing, I had in mind
what I regarded as a peculiarly odd enterprise the Supreme Court
once engaged in. I forget which way they came out. But they had a
lot of trouble with a question of whether a community could ban
dancing in the nude in a bar, and that struck me as not something
they should have had a lot trouble with.
I think they went to the amendment allowing states to control
liquor to finally bar the nude dancing.
The CHAIRMAN. Well, let us stick with that for a minute. I am
trying to get at your politicalthere has to be a political nexus.
Judge BORK. NO, I do not think it is a political nexus. I said that
there are all kinds of forms ofwell, there are two lines I want
point out. There are all kinds of forms of expression, discourse, lit-
erature that seriously affect the way we view our society and the
way we view ourselves and so forth, and I am willing to protect
that.
As a theoretical matter, I could draw a different line. There is
now a vast corpus of first amendment decisions, and I accept those
decisions as law, and I am not troubled by them. If I wanted to
start over again and say what line would I draw, I do not know. I
do not know.
The CHAIRMAN. Gee, Judge, in 1985 though you
Judge BORK. NO, no, I said 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 there is a body of law now that covers those things. It
does not disturb me and I have no desire to disturb that body of
law.
The CHAIRMAN. HOW about the case, for example, where an Afri-
can dance troupe is going through and the women who do the Afri-
can tribal dances that they are having on this tour are topless be-
cause they do not wear anything.
I mean could the county council of Newcastle County ban them?
Judge BORK. I think on the current law it could not, and I would
not attempt to
The CHAIRMAN. But under your view, could they?
Judge BORK. If I were going back to redraw a theoretical line, I
do not know where I would draw it. I would probably would not
ban that because that is also a cultural display, and it does affect
our view of things, and I probably would not ban that.
But I have not gone back to redraw a theoretical line. It seems to
me the current body of doctrine, the current body of law which is
well-settled protects that, and I certainly have no desire to go run-
ning around trying to upset settled bodies of law which are not, to
say the least, pernicious. Those decisions are not pernicious.
You may argue and say that, well, a different line could have
been drawn. I do not know if it could or not, but those are cases
which I would certainly not classify as pernicious. I would not clas-
sify them as clearly wrong, and I would accept that line of first
amendment cases gladly, not grudgingly, gladly.
328
If I were being a theoretician again and starting from scratch

with the first amendment, I would struggle long and hard to find
out where line should be and currently I do not know what I would
do as a theoretician because I have not revisited the area for some
time, but as a judge
The CHAIRMAN. In 1985 you did, Judge.
Judge BORK. I did not revisit it. I was talking about what I had
said before.
The CHAIRMAN. Oh.
Judge BORK. But as a judge, I accept those decisions and have. If
you look at my first amendment decisions, they are quite-when I
use the word "liberal", I am not talking about political inclinations
but they are liberal constructions of the first amendment.
The CHAIRMAN. Only on libel as I read them, but I won't get into
that.
Judge BORK. Well, libel is not different from other things.
The CHAIRMAN. Well, it is. It is. As you know, we used to teach
itat any rate, because my time is up, let me conclude by suggest-
ing that in 1984 your letter to the ABA that you have spoken to, as
I read that letter, you still focused on the relationship to the politi-
cal process of speech and after you started off by saying that the
first amendment applies to more than just speech, that is, quote,
"explicitly political" you went on to say, and I quote, "I have long
since concluded that many other forms of discourse such as moral
and scientific debate are central to democratic government and de-
serve protection. I continue to think that obscenity and pornogra-
phy do not fit this rationale."
In 1984, you did not decide that moral and scientific speech
should be protected for its own sake. Instead you said it should be
protected because you had decided that it fit your rationale for pro-
tection.
Do you understand what I am driving at here?
Judge BORK. Sure, Senator, I do, but that is a letter to the editor
in which I decided not to try to spell out in detail my views on the
first amendment, and I said, as you just quoted, I have decided that
otherdid I say many other forms of discourse?
The CHAIRMAN. Yes.
Judge BORK. Many other forms of discourse such as, and I men-
tioned moral and scientific speech. That means that there are
other categories as well, and I was not trying to spell out a juris-
prudence of the first amendment in detail in a letter to the editor.
The CHAIRMAN. Well, the last point. You did an interview with
Worldnet. In June of 1987, you did an interview with Worldnet
where you still focused on whether speech relates to the political
process.
You said there that a spectrum of speech with political speech at
the core, excuse me. You said there was a spectrum of speech with
political speech at the core. You explain the political speech was
speech about public affairs and public officials.
You went on to say the protection spread out from the core to
scientific speech into fiction and so forth, but then you went back
and stressed that some speech had no relationship to politics, and
you said that that speech has no protection.
329
In your words, and I quote, "There comes a point at which
speech no longer has any relation to these processes," and there
you refer to the political processes, and as mentioned above, again
quoting, "when it reaches that level, speech is really no different
from any other form of human activity which produces self-gratifi-
cation.
Judge, it seems to me to be far from where you started.
Judge BORK. Well, let me read that again, please, Mr. Chairman,
because I think I said something that I did not hear. Nobody, I
think, doubts that the core of the first amendment is political
speech. Harry Kalven did not doubt it and Alexander Meicklejohn
did not doubt it.
The New York Times v. Sullivan case, which threw protections
around people from libel actions, focused upon public officials,
public figures and so forth because they are the subject of politics
and comment.
Everybody, including the Supreme Court, starts from the politi-
cal speech core, and that is the most strongly protected. But let me
read what I did say in this thing. The German professor, they were
in, I forget, in Hamburg or someplace, asked me something, and I
said, "I cannot tell you much more than that there is a spectrum
of, I think, political speech. Speech about public affairs and public
officials is the core of the amendment. Protection is going to spread
out from there as I say in the moral speech and the scientific
speech into fiction and so forth."
That statement explicitly contemplates protection for fiction and
so forth. Whatever that is. Then I said there comes a point, which
you quoted, where it is no longer related to these.
I think when you get the speech or print which is purely for
sexual gratification, pornography or obscenity, I fail to see its con-
nection to anything.
The CHAIRMAN. But how about just speech for speech sake that is
not pornographic but that people do not like it. It has no relation-
ship to the political process?
Judge BORK. Well, I just said that fiction and so forth is protect-
ed. I said that in this interview you quote.
The CHAIRMAN. Can fiction reach a point where it is no different
from any other form of human activity and produces only self-
gratification?
Judge BORK. Produces only self-gratification? I think about the
only form of fiction that does not affect ideas and attitudes or af-
fects them in ways that are not particularly healthy is obscenity or
pornography. I use the terms interchangeably. I think I am using
them interchangeably.
The CHAIRMAN. Well, my time is up. I will come back again.
Thank you, Judge. I yield to the ranking member, Senator Thur-
mond.
Judge Bork, over the past two days you have made comments on
the equal protection clause of the 14th amendment. Some have
criticized you for what they understand to be your position. This
morning I would like to explore your understanding and analysis of
the 14th amendment.
330
The 14th amendment reads, "Nor shall any State deprive any
person of life, liberty, or property without due process of law nor
deny to any person within its jurisdiction the equal protection of
the laws."
Now, let us start with the basics. The language says, "No State
shall deny equal protection to any person." Does that mean every
person in the State must be treated the same by every law?
Judge BORK. It means every person in the State must be treated
the same unless there is a valid basis for making a distinction. Ob-
viously to take the extreme example, we do not treat burglars and
honest people the same way. We make a strong distinction between
those two groups, and that is a valid distinction.
Now, when we come down to other groups, to other people, the
question is is the distinction made between them by a law valid? I
can go on about that, Senator, but if you want to ask a further
question in this area, I can wait for that.
Senator THURMOND. Then naturally states draw distinctions
among its citizens. The Court must then decide if the distinctions
drawn by the states are reasonable under the 14th amendment.
How does the Court do that? What standard is currently used in
race cases, strict scrutiny; in gender cases, heightened scrutiny; all
other cases, rational basis?
Judge BORK. NO, I hope not, Senator. The Supreme Court is a
little bit divided on this issue. There are two schools of thought up
there. One is that you identify a group and then decide what level
of scrutiny you will give to any law that disadvantages that group
in some way, and I think that is a little paradoxical given the lan-
guage of the amendment which you have quoted which means it
applies to all persons so that I would think that no group could be
excluded from the protection of the amendment as a group.
What the equal protection clause requires is that people who are
similarly situated be treated equally, and in the case of race, there
is no valid basis for a distinction, and so the 14th amendment re-
quires equality absolutely.
In the case of gender, there are only a few bases of distinction,
and I got into this topic with Senator DeConcini yesterday. I men-
tioned some of the extreme cases, but I think those are almost the
only cases in which a distinction between the sexes would be allow-
able.
For example, gender is irrelevant to your ability to work as a
lawyer or as a doctor or anything else. I agree completely with the
Supreme Court case of Reed v. Reed, which said that a State stat-
ute saying that if there is a man and a woman in the family, the
one who is preferred, who becomes the administrator of an estate,
must be the man. That is an irrational distinction and it was
struck down, and it should have been.
The fact is a reasonable basis approach which rejects artificial
distinctions and discriminations would arrive at all of the same re-
sults, I think, or virtually all of the same results that a majority of
the Supreme Court has arrived at using a group approach and an
intermediate level of scrutiny approach. There is really no differ-
ence in anything except the methodology, but women are covered,
every person is covered by the qual protection clause.
331
I am glad to have a chance to go into this because people seem to
think that a reasonable basis test is a very weak protection. It is
not. It has become a weak protection in economic areas because the
Court has found distinctions there to be allowable that we do not
allow elsewhere. But it is not a weak protection in areas of race,
gender, and so forth.
Let me point out what the Supreme Court has done in the past
in this area because these are cases I disagree with. I disagree with
the Supreme Court in these cases. In Kotch v. Board of River Port
Pilot Commissionersthis is my Indiana article, by the way, on
page 12. The Court decided that a State could grant pilots' licenses,
river boat pilots' licenses, only to persons who were related by
blood to existing pilots, and they could deny licenses to persons oth-
erwise as well or better qualified. The Supreme Court upheld that
ridiculous distinction back then, not too long ago. That seems to me
a distinction that would fail on a reasonable basis test.
Then in Goesaert v. Cleary, a case from 1948, the Court said that
a State could refuse to license women as bartenders unless they are
the wives or daughters of male owners of licensed liquor establish-
ments. That was upheld in Goesaert v. Cleary. That, too, is a ridicu-
lous distinction and would fail under the reasonable basis test. And
so forth.
The reasonable basis test would give us all of the protections,
maybe more than you would get by identifying particular groups
and deciding which level of scrutiny we get. I have just been shown
Justice Stevens' remark in City of Cleburne which was a distinction
about retarded children. It says, "In every equal protection case"
this is Justice Stevens"we have to ask certain basic questions.
What class is harmed by the legislation, and has it been subjected
to a tradition of disfavor by our laws? What is the public purpose
that is being served by the law? What is the characteristic of the
disadvantaged class that justifies the disparate treatment? In most
cases, the answers to these questions will tell us whether the stat-
ute has a rational basis. The answers will result in the virtually
automatic invalidation of racial classification and in the validation
of most economic classifications, but they will provide differing re-
sults in cases involving classifications based on alienage, gender, or
illegitimacy. But that is not because we apply an intermediate
standard of review in those cases; rather, it is because the charac-
teristics of these groups are sometimes relevant and sometimes ir-
relevant to a valid public purpose, or more specifically, to the pur-
pose that the challenged law is purportedly intended to serve."
I think it is important to say that because I think there has been
a misimpression that the reasonable basis test is a weak test. It is
weak only in the area of economic distinctions. It is not weak in
the area of race or gender or other persons.
Senator THURMOND. YOU may have covered this next question,
but I am going to ask it and you can decline if you feel you have
covered it.
You have been accused of two errors in your analysis. First, you
were charged with using a different standard for women; that is,
gender cases. Is it not true that the current Court standard for
gender cases is different than race cases?
332
Judge BORK. Well, the reasonable basis test is probably applied

in both. It is just that the difference between races is irrelevant,
and, therefore, distinctions may not be made. In discussing this
with Senator DeConcini, I mentioned that, for example, things that
you would not allow in a race case, you might allow, you would
allow in a gender case; such as different toilet facilities, difference
about going into combat and so forth.
Now, that makes my point. There are very few areas in which a
distinction between men and women is allowable, and those are
among the few. But that distinction would not be allowable on the
basis of race.
Senator THURMOND. The next question I have is that, at any
rate, you are accused of having a lower standard for gender and
race cases than is currently employed.
Judge BORK. That is not the case.
Senator THURMOND. I think you have covered the situation.
Judge BORK. I think so.
Senator THURMOND. NOW, is it not correct to say that analysis
under the 14th amendment, while certainly involving important
issues, really turns on how much deference the Court gives to State
legislatures to elected officials.? The higher the regard for elected
officials, the more deference a judge is likely to allow.
Judge BORK. Well, I suppose it depends on whether you allow
deference or not. I would think that it is not a question so much of
deference as to whether the State, if it makes a distinction in its
laws, states a reasonable reason for the distinction that is a valid
reason. I do not think it is a question of deference, exactly; it is a
question of listening to what they have to say and deciding wheth-
er what they have to say makes sense.
Senator THURMOND. NOW, let us explore one other issue. Over
the past several decades, the 14th amendment has been used by the
Court to inject its policy objectives into law. While some may like
the particular results of that analysis today, is it the thrust of your
objection that without a principle analysis the tables can be turned
on any issue at the whim of the Court, so that some who like a
free-flowing equal protection analysis today may regret it tomor-
row?
Judge BORK. Oh, that is quite true, Senator Thurmond. I made
the same point just a minute ago, that the substantive due process
approach, which is equivalent in its legislative capacity by judges,
to a free form equal protection analysis is capable, as it was in
Dred Scott v. Sanford, of producing horrible results, just as it is ca-
pable of producing what some would regard enlightened results.
When you hand this power to judges, if you allow this power to
judges, you have no guarantee that the judges will always produce
what we or any number of us would like. Judges, once they begin
to put their personal preferences into law, may come up with
dreadful results, as they did in Dred Scott and as they did in the
early 1930s when they were striking down reform legislation.
Let me say something about why I prefer a reasonable basis
analysis to a group-by-group analysis. It is not just that the lan-
guage of the amendment refers to "any person," therefore all per-
sons. It is that if one thing is clear about the 14th amendment, it is
that the framers of that amendment, the people who ratified it,
333
had no intention of wiping out distinctions between men and

women that we would now regard as very discriminatory. They
went ahead and did it.
So if you say group by group are women included or not, you
have a hard time, as a matter of the intention of the people who
passed that, of saying women as a group are included. But we have
been using a reasonable basis test as a means for implementing the
broad language of the equal protection clause now for all of this
century. I think it makes more sense in this sense.
I said in this case of Oilman y. Evans that we talked about, that
the Constitution evolves as society changes. I said that about the
first amendment and its relation to libel actions, but it is also true
here. Distinctions that we made between genders in the 19th centu-
ry and which we assumed to be reasonable then, or the society as-
sumed to be reasonable then, no longer seem to anybody to be rea-
sonable. And those distinctions are beginning to fall. I think they
are beginning to fall because the place of women in society has
evolved rapidly and changed rapidly, and now we see only a few
distinctions that may reasonably and rationally be made between
men and women. And I have mentioned two. Some people say
those are extreme cases, and they certainly are. Only extreme
cases in this area can be justified.
Senator THURMOND. Judge Bork, you were asked yesterday
whether your approach to women's rights would afford women con-
stitutional protection against invidious discrimination. I think you
have already very eloquently explained your reasoning. Your ap-
proach, as I understand it, would afford equal protection to all per-
sons under the 14th amendment.
Generally, your approach is more in line with Justice John Paul
Stevens' rationale. Justice Stevens has written, "A reasonable basis
test would not lead to results very different from those under the
Court's current analysis. For example, one need not employ a com-
plex intermediate scrutiny test to determine whether a particular
gender classification is reasonable. Although all-male combat units
may be reasonable, disabilities based on outmoded stereotypes are
not."
The Supreme Court's decision in Rostiker v. Goldberg upholding
the all-male draft registration appears to confirm this conclusion.
Do you think your approach would protect women's right as ade-
quately as they are protected now? And would you explain your
answer.
Judge BORK. Senator, I do think they would be protected as ade-
quately as they are now, and I explained my answer by much of
what I have just said; that rational distinctions cannot be made be-
tween men and women, usually, except on physical strength or
something of that sort, which is the combat example. It is rational
to have all-male combat troops. But in the ordinary occupations of
life and in social intercourse and so forth and so on, there is no
rational distinction between men and women.
I think the Supreme Court has about arrived at that decision
using intermediate scrutiny and so forth. I arrive at it, as Justice
John Paul Stevens does, using a reasonable basis test. Is there a
reasonable basis for a distinction?
86-974 0 - 89 - 13
334
Most of the distinctions that survive in the law are old ones
made long ago which no longer seem to reasonable to us. They are
not reasonable. In a different state of culture, in a different state of
society, they may have seemed reasonable. They are not now.
Senator THURMOND. Judge Bork, I think there may be some con-
fusion as to your position on first amendment rights. For example,
in a case of written materials that fall within a State's classifica-
tion of pornographic, the question is whether that State's classifica-
tion meets the Supreme Court standard of pornography.
If the State's classification and the Supreme Court's are in
accord, then the individuals concerned are not entitled to judicial
intervention. However, I think confusion arises because of the
characterization to protect judicial intervention. I think some
people view this characterization as a Court declining to make a
judgment on whether protections of the first amendment extend to
certain materials.
I think what you are saying is the Supreme Court or lower court
must review the material itself and then make the determination
whether the materials are, in fact, pornographic; and if they are
pornographic, they do not get first amendment protection. If they
are not pornographic, they may be entitled to first amendment pro-
tection.
Would you again please clarify your position on this subject?
Judge BORK. Yes. The Supreme Court has repeatedly said that
there are some categories of speecha very fewwhich are simply
outside first amendment protection. They have mentioned obsceni-
ty; they have mentioned fighting words, words that are likely to
start a fight; and a few others.
Now, in order to make sure that the first amendment is being
complied with, when a State punishes words as obscenity or as
fighting words or any other category, the Supreme Court has to
look, or some court has to look and say, Did the State correctly
classify those words as obscenity or as fighting words under the
constitutional standard? If the State did not, then the Supreme
Court should reverse the conviction and say you may not punish
that speech.
But it is for the Supreme Court to define what is obscenity and
the Supreme Court to define what is fighting words, and to ask in
each case, Did the State correctly act against those words, or did it
incorrectly act against those words?
I trust I make myself clear on this point, but I am not sure. All I
am saying is that the ultimate control of the definitions and cate-
gories of words must be in the Supreme Court, not in the State, if
the first amendment is to be upheld.
Senator THURMOND. Judge Bork, would you again explain your
theory of the relationship between the Brandenburg test and Jus-
tice Holmes' theory of the clear and present danger test?
Judge BORK. Well, the views I expressed in 1971it was a bad
year. The views I expressed in 1971 and Justice Holmes' clear and
present test, I think that the Brandenburg case falls somewhere in
between that.
Now, let me explain. I think that I have been getting criticism
first because I never change my mind; now I am being criticized
335
because I change my mind. And I want to explain where I stand
about this so that I can be criticized on the right grounds.
There is only one difference between what I said about advocacy
of law violation and the Brandenburg position. I am not talking
about here somebody advocating violating the law in order to test
its constitutionality. I am not talking about the Martin Luther
King case; because if you advocate the violation of law in order to
test its constitutionality, certainly the speech is protected if the
law is unconstitutional. It may well be protected if the law is un-
constitutional. I do not know where the law stands on that right
now.
I am talking about the advocacy of law violation which is not re-
lated to a claim of unconstitutionality in any way.
I had really said, I did say that I thought theoretically the advo-
cacy of law violation in such circumstances could have been pun-
ished under the first amendment. What Brandenburg did was say
there must be a closer nexus between the advocacy and the lawless
action. It said the advocacy of law violation must be in circum-
stances where there is the likelihood of imminent lawless action.
So it added one factor to what I said, the closeness of the danger.
Now, I have not changed my mind about what I said upon this
subject. I could have accepted a first amendment law that devel-
oped the way I thought in 1971 it ought to have from the begin-
ning. I could accept that.
The law did not develop that way. It developed to require a
closer nexus between the advocacy and the violent action or the
lawless action, imminent lawless action. That is a change in the
thing, but it does not involve me changing my mind at all. I can
accept either position.
I accept the fact that the Supreme Court has added an additional
safeguard to the position that I took in 1971 for speech advocating
lawlessness. As an academic, I thought that was not theoretically
justified. As a judge, I accept it, and that is all there is to that.
I think you will see that I have no trouble with a strong reading
of the first amendment from my court of appeals record, which is
more relevant, I think, than speculations in the past.
In any event, there is not that much difference between my past
position and the decision in Brandenburg.
Senator THURMOND. Judge Bork, yesterday, in response to a
question, you indicated that there are some rights that are not enu-
merated in the Constitution, but are recognized because of the
structure of the Constitution and government.
Could you give us an example of one of these.
Judge BORK. Well, the right to travel, I think, Senator, was first
derivedI have not re-read the case, recently, but I remember, it is
in Crandall y. Nevada, a couple of years before the 14th amend-
ment was ratified.
Nevada was taxing people a dollar every time they left the State,
and the Supreme Court struck down that tax in saying there was a
right to travel without hindrance by the State, and it did so on
structural reasoning about the nature of the Federal Union, and
how you have to travel, and so forth.
But the oldest example of structural reasoning in the lawI do
not know if it is the oldest, but the bestis Chief Justice John
336
Marshall's opinion in McCulloch v. Maryland, where entirely on

structural grounds, he first establishes the right of the United
States to create a national bank, the Bank of the United States,
and then establishes that that bank must be free from State tax-
ation of its commercial instruments. An entirely structural argu-
ment, entirely sound argument.
Senator THURMOND. Thank you very much. My time is up.
The CHAIRMAN. Senator Kennedy.
Senator KENNEDY. Thank you, Mr. Chairman.
Judge Bork, the framers of the Constitution recognized the un-
checked powers of the executive branch of government as perhaps
the greatest threat to liberty. That is what the fight for independ-
ence was all about. They did not want another King George, and
they certainly did not want an all-powerful President.
One of the ways in which the Constitution protects our freedom
is by dividing the powers of government among the three
branchesthe President, the Congress, and the Courtsand ensur-
ing that each branch is in a position to check any abuses by the
others. That is what the checks and balances are all about.
First, I would like to talk about the War Powers Act. When the
Congress passed that legislation in 1973, a very broad bipartisan
majority of the House and Senate expressed the view, in the wake
of Vietnam, that no President should ever again be able to lead the
country into an undeclared war without the approval of Congress.
Judge Bork, that was passed over President Nixon's veto by a
vote of 75 to 18 in the Senate of the United States.
Isn't it true, that in an article in "The Wall Street Journal," in
1978, you stated that the War Powers Act wasand I quote
"probably unconstitutional, and certainly unworkable?"
Since then, have you expressed any different view about the War
Powers Act?
Judge BORK. I do not know if I have, Senator, but I think I can
clarify that, not that I am going to take it back. I am just going to
clarify it.
That was a sentence leading into a different topic, and I do not
recall whether I have ever made any extensive analysis of the War
Powers Act.
But there are certainly problems with workability, and I do not
today recall all the details, but a lot of Presidents, and so forth,
have complained about aspects of it.
I remember when President FordI think it was the Mayaguez
episodeand in order to notify the Speaker of the House he had to
call him where he was, in China, flying on a Chinese airliner, to
tell him about a military action. It seemed a little odd, but I do not
really care about that. Those are policy questions, and they are not
for me.
When I say it was probably unconstitutional, that is a very com-
plex act, and let me say, I think the consultation requirements
probably seem constitutional to me. The notice requirement seems
constitutional. But you know, that act, as I recall, contains a legis-
lative veto. I may be wrong, but I think it contains a legislative
veto, which, at the time, I thought was probably unconstitutional,
337
and the Supreme Court in the Chadha case has since said that it is
unconstitutional.
So that, I do not think, to that degree mine was a bad prediction.
If I had to construe the statuteand I do not know that I ever will
because there are problems with justiciability, and I do not know
the answer to the justiciability problems but they are there.
I would construe it in order to save its constitutionality as any
judge should. There is one other area of possible problems with the
act, and that is this. The major questions of war, or peace, or ques-
tions affecting that, are most certainly for the Congress. Only Con-
gress can declare war.
In fact the Congress need not give the President a single soldier.
There is no constitutional requirement that it do so.
But at the other end of the spectrum, tactical decisions in the
field seem to me to be for the Commander in Chief, and, for exam-
ple, I wouldto take the extreme caseI would have very much
doubted that during the Battle of the Bulge, Congress could have
ordered the President to surrender the airborne troops at Bastonne
rather than continuing the battle.
Now there is a vasi spectrum between the ultimate strategic
question of war or peace and tactical decisions in the field, and it
may be that some constructions of the War Powers Act might get
Congress into clearly tactical decisions, but I am not sure about
that. I have not looked at that for a long time.
Senator KENNEDY. Of course your article in The Wall Street
Journal does not relate to the legislative veto and there are many
other provisions in the War Powers Act itself.
In 1971, you suggested that it was unconstitutional for Congress
to stop the President from invading Cambodia. We all agree that
the President is the Commander in Chief, and the Congress cannot
manage and should not manage military tactics. That was very
clear during the hearings, and during the debate on the War
Powers Act. We cannot run a war, but we ought to be able to stop
a war. That is just common sense in a democracy, and the Ameri-
can people have learned, with good reason, to be skeptical of presi-
dential wars.
We all know what happened in Vietnam, and the same concerns
were there when President Reagan sent the troops into Lebanon,
and the American people are obviously concerned today in regard
to our policy in Nicaragua as well as the Persian Gulf.
So the War Powers Act simply insures that the President has the
support of Congress and the country for these sorts of military ac-
tions, but you say the Congress does not have any such power in
this absolutely vital area of war and peace.
You say it is unconstitutional and you say it is unworkable.
Judge BORK. Senator, I just said precisely the opposite. I just said
the question of war or peace is entirely for Congress. Only Con-
gress can declare war.
As far as Vietnam is concerned, Congress could have cut off the
funds and ended that war, whenever. That would have been entire-
ly constitutional.
My only question was a question of tactics within a war.
Senator KENNEDY. Let's go to the Foreign Intelligence Surveil-
lance Act which was passed in the Congress in 1978 by 95 to 1, to
338
correct some of the abuses by the FBI and the Central Intelligence
Agency during the Nixon administration.
It requires that a warrant be obtained from a special federal
court before electronics surveillance can be conducted on United
States citizens in the course of a national security investigation. It
contained an exception for a limited number of top-secret wiretaps
by the President.
In June 1978, you testified before the House Judiciary Commit-
tee, and I quote:
The plan of bringing the Judiciary, a warrant requirement, and a criminal viola-
tion standard into the field of foreign intelligence is, when analyzed, a thoroughly
bad idea, and almost certainly unconstitutional as well. The law is very probably a
violation of article II and III.
Since your testimony before the House Committee, have you ex-
pressed a different view regarding that?
Judge BORK. I do not recall that I have, Senator, but let me ex-
plain that view.
We are talking now about electronic surveillance of people we
have good reason to believe are agents of a foreign power. Every
President since Franklin Roosevelt has claimed the power to
engage in electronic surveillance of foreign agents without a court
warrant. Every President has claimed it.
In addition to that, the United States has won two court cases at
the court of appeals level. In the fifth circuit, the court of appeals
upheld a warrantless electronic surveillance against a foreign
power.
In the third circuit, the court sitting, en banethat is the full
court, not just three judgesthe court sitting, en bane, said the
President had the constitutional power to engage in electronic sur-
veillance of a foreign agent without a warrant.
When I was Solicitor General, we had the Butenko case which in-
volved a Soviet KGB agent who was caught through electronic sur-
veillance without a warrant, and I knew we had won this case in
two lower courts, that the President's power included that.
So when ButenkoI think it was called Ivanov by that time
when he petitioned for certiorari, having lost in the lower court, I
told the Supreme Court that I had no objection to the Court taking
the case because I wanted to get a Supreme Court ruling on the
President's power to conduct electronic surveillance against foreign
agents without warrants.
We had been winning those cases in the courts, and that is why I
thought it was the prerogative that every President since Franklin
Roosevelt had claimed. That is the article II point, Senator.
The article III point is this. Article III requires that the judicial
power be used where there is a case, or a controversy. In the ordi-
nary warrant case, you certainly have the potential for a case or a
controversy because the judge or a magistrate issues a warrant.
If any arrest, or anything goes wrong, or damage occurs in the
execution of that warrant, that warrant may be challenged in
court.
What troubled me about this new warrant procedure was that it
is a secret court. There is no challenge to challenge the procedure
unless somebody is arrested, which may not be the case because
you are just surveilling for intelligence purposesthere is no chal-
339
lenge to the procedure and you have got a body of secret law grow-
ing up, that nobody knows about except the judges on the court
and the Government people who go to talk to that court.
That worried me, under Article III of the Constitution. I was not
sure that was a judicial function.
Senator KENNEDY. Well, the fact is, under the Constitution Con-
gress must have the power to limit surveillance of U.S. citizens.
The fact is we have had that on the law books now for a number of
years.
Judge William Webster, who is now the Director of the CIA, also
the former Director of the FBI, when he was questioned about
whether he believed it was any hindrance in terms of trying to
follow or surveil foreign agents, subversives, those that might be
treasonous to the United States, said that the actand I quote
"worked beautifully."
Obviously that particular law is an important safeguard now. I
think of the administration's opposition to the sanctuary move-
ment for refugees from El Salvadorwe are talking about Ameri-
can citizens now. We certainly do not want Ed Meese running
around with unlimited power to put wiretaps on churches.
You seem to feel that the law infringes on the national security
power of the President, but the Congress did not think the Presi-
dent has any inherent power to violate the privacy of American
citizens in the name of national security, and I do not think that
the President has any such power
Judge BORK. I quite agree with you, Senator. The President has
no power just to violate the privacy of American citizens.
Senator KENNEDY. Under the guise of
Judge BORK. Well, under the guise, that is right. All I was saying
is that two courts of appeals had held that he did have the power
to conduct electronic surveillance of foreign agents. He may not.
All I know is that two courts of appeals held it. I do not know if he
does, or not, but that was the way the law stood at the time I was
saying that.
Senator KENNEDY. Let's talk about another area. That is the role
of special prosecutors.
Many of us in Congress and the country are troubled by charges
in the Iran-Contra scandal that officials in the executive branch
broke the law and ignored statutes enacted by the Congress pro-
hibiting U.S. military aid to the contras in Nicaragua. It seems
fundamental to the rule of law, that the President must obey the
same laws that bind every other American. No President, no offi-
cial, is above the law.
And after the unsatisfactory experience with Watergate, particu-
larly your firing of Special Prosecutor Archibald Cox, Congress en-
acted a law so that special prosecutors could be appointed by the
courts, with their independence guaranteed.
In November 1973, a few weeks after you fired Mr. Cox, you tes-
tified,
The question is whether congressional legislation appointing a special prosecutor
outside the executive branch, or empowering the courts to do so, would be constitu-
tionally valid, and whether it provides significant advantages that make it worth
taking a constitutionally risky course.
340
I am persuaded that such a course would almost certainly not be valid, and
would, in any event, pose more problems than it would solve.
Would you tell the committee whether you have ever publicly ex-
pressed a different view regarding the constitutionality of the spe-
cial prosecutor legislation.
Judge BORK. I publicly
Senator THURMOND. Mr. Chairman, I would like to make this
point. That is a question that may come before the Supreme Court,
and I would caution the witness to be careful of what he says on
that point.
Judge BORK. I was just going to repeat what I said back in 1973,
because for one thingand I think those proposals were very dif-
ferent statutes than the one that is now in effect. They contemplat-
ed judicial appointment and judicial control, and judicial termina-
tion of the special prosecutor. The present one does not.
I was complaining about control of the prosecutor by the courts,
which I think is right. Also, the question arose in those hearings
whether Congress could, by statute, protect a special prosecutor, so
he could only be fired for cause.
And as I recall what I said thenand I do not, heeding the warn-
ing given me by Senator Thurmond, I am just repeating what I
said thenwas that Congress probably could protect the special
prosecutor from discharge except for cause, if that special prosecu-
tor was a subordinate official, that is, somebody appointed by the
Attorney General, rather than somebody appointed by the Presi-
dent and confirmed by the Senate, because the case law seems to
suggest that the President has much more power over an official
he appoints and the Senate confirms, than he does over a subordi-
nate official appointed by a department head. So I made that dis-
tinction back then.
Senator KENNEDY. That is a welcome one because as you very
well know, the special prosecutor statute has been invoked several
times, both by the Carter and the Reagan administrations. In fact
five separate special prosecutors are now investigating the Presi-
dent and former members of the Reagan administration, including
an investigation of the Attorney General himself.
Judge BORK. Senator, I want to stress, particularly in light of
what Senator Thurmond said, that I am merely calling to your at-
tention what I said in 1973. I am not in any way passing judgment
on the current statute or any aspect of it.
Senator KENNEDY. NO. But you have not published anything
since 1973.
Judge BORK. Not that I recall.
Senator KENNEDY. SO that is the last public statement that you
have made on it.
Senator KENNEDY. That matter has been before the Congress,
been debated, been discussed by this Committee. There is a wide
range kind of involvement of special prosecutors in this administra-
tion, and your last statement is the statement on the special pros-
ecutor I referred to above, which I think we have to take at face
value since you have not published, or at least stated, or put in any
of your speeches, anything else to change that.
341
Senator KENNEDY. I mean, I respect that you may not want to
comment on a particular matter that is even now before the Court,
but I think it is fair for us to draw certain conclusions from the
statements that you made in 1973, your last statements with
regard to it, particularly since you have been so involved in the
whole question of special prosecutors.
Moving to another area, I would like to ask you about congres-
sional standing to bring law suits challenging abuses of the Consti-
tution by the President.
Obviously, as in the case of the War Powers Act, Congress cannot
run the executive branch, and we cannot take the President into
court every time we disagree with a policy of the administration.
But that is not the issue. In a few very important situations, mem-
bers of Congress should have the right to resort to the courts to
preserve the constitutional role of Congress. That is what we call
the doctrine of congressional standing, the right of members of
Congress to sue in the courts.
In a dissenting opinion in 1985, is it not true you said, and I
quote, "We ought to renounce outright the whole notion of congres-
sional standing"? Then you went on to state in that opinion, and I
quote,
When Federal courts approach the brink of general supervision of Government, as
they do here, the eventual outcome may even be more calamitous than the loss of
judicial protection of our liberties.
Since you issued that opinion, have you expressed any different
view?
Judge BORK. No, I have not. Perhaps I should explain a little bit
about that.
The doctrine of congressional standing, as you and I know, Sena-
tor, but perhaps not everybody listening to us knows, is the theory
that if the President does not enforce the law the way Congress
thinks it intended the law to be enforced, a Congressman may sue
to get an injunction or a declaratory judgment against the Presi-
dent to make him do what the Congressman wants him to do.
That is an entirely novel constitutional doctrine which I think
was never heard of before 1974 in the case you brought, Kennedy v.
Sampson and it is confined to the circuit court on which I sit. I do
not think any other circuit has ever picked up that doctrine. So it
is a constitutional novelty, and it is by no means settled. And the
Supreme Court has not passed upon it.
The reason I am troubled by it as follows: What it will lead to is,
I think, other domination of the Government by the judiciary. If a
Congressman has something akin to a property interest or some-
thing in the law he passes, if it is not carried out properly, so that
his official capacity is in some sense diminished, then I think the
President has an equal interest in not being forced to do things he
regards as improper or unconstitutional. Therefore, if Congressmen
may sue the President because he is not doing something under the
law they would like, if the Congress overrides a presidential veto
and the President thinks that cuts into his constitutional office too
much, the President can sue the Congress.
For example, I spent some time as Solicitor General trying to get
a case on the legislative veto. I wanted to see whether that thing
342
was constitutional. If I had understood the theory of congressional

standing, which is really governmental standing, I could have
stopped hunting for a case. I could just have had the President sue
the Congress and get a declaration right away.
But if it is true of a President and Congress, it is also true of
judges. If Congress passes a statute that I think cuts into my
powers, I can go to the Supreme Court for a declaration of uncon-
stitutionally. In fact, that happened. Two judges in the Northern
District of Illinois were reversed by the seventh circuit, and the
judges petitioned for certiorari to the Supreme Court on the
grounds that the seventh circuit had done things to their office
which were improper.
Everybody is going to be in the federal court defining their rights
of office instantly. What is important to remember about congres-
sional standing is it is not the only way you can get those issues
before the Court. If the President does something that is not in ac-
cordance with the law, there is almost always a private individual
who can sue and who can show injury; and he can then challenge
the President's action, which is exactly what happened in the old
pocket veto cases.
Senator KENNEDY. Well, I must say that I have difficulty in quite
accepting the premise that we would find each of the various re-
spective branches suing the others, because the speech and debate
clause forbids lawsuits against members of Congress for actions in
their official capacity. For any speech or debate in either House,
they shall not be questioned in any other place. Judges under the
Stump v. Sparkman decision are immune from suit for decisions
they make.
Congressional standing may not always be appropriate, but it
clearly is appropriate when the President unconstitutionally claims
a duly enacted law is not a law at all. I think we are not opening
the floodgates by giving Congress the power to go into court in a
narrow range of cases where the President has abused his power
and denied the rights of Congress under the Constitution. You say
that the Congress cannot even raise the question in court because
that sort of litigation would open up the doors to all sorts of other
abuses. I believe that is just another example of your attempt to
draw a bright line that just does not make any sense. In
Judge BORK. That was not a brightI am sorry, Senator.
Senator KENNEDY. I will just finish this thought, and whatever
comment you have, obviously we would welcome.
In recent years, a number of Senators and Congressmen of both
parties thought the President was not acting in accord with the
Constitution. They tried to take the administration to court. I
think Barry Goldwater would be surprised to hear that you did not
think he had standing to challenge President Carter on the Taiwan
Defense Treaty. I think Jesse Helms would be surprised to hear
that you do not think he had standing to challenge President
Carter on the Panama Canal Treaty. Many other Senators have
filed actions in federal courts, including Senator Melcher, Senator
Metzenbaum, Senator Pressler, Senator Proxmire, Senator Riegle,
Senator Trible and others.
The issue has nothing to do with the merits of the cases. The
point is, Mr. Bork, you seem to think that the members of Congress
343
are in these instances second-class citizens. You close the court-

house door on all of us, and we never get our day in court.
Senator THURMOND. Mr. Chairman, I want to say again
Senator KENNEDY. Could I hear from the witness?
Senator THURMOND. Well, I am making a point. I want to say
again that there is a case pending that may be before the Supreme
Court. Again, I would caution the witness on this point.
Judge BORK. I will just answer two points that seem to me to
be
The CHAIRMAN. Judge, let me make clear, you are the one to
make the judgment as to whether or not it is something that may
in any way compromise you. I appreciate the Senator's admonition,
but please proceed.
Judge BORK. I will say, then, something that does not compro-
mise me. I have written what I have written. It is a long opinion,
and it is all laid out.
But let me just say this: Senator Goldwater would not be sur-
prised to learn that I have these views, because when he brought
that case about the Panama Canal, some of the lawyers working
with him called me about my involvement. And I said, "I do not
think you have standing." And they never called back. So he will
not be surprised to hear this.
Senator KENNEDY. I cannot understand why.
Just a follow-up on the Foreign Intelligence Surveillance Act,
when we discussed the Foreign Intelligence Surveillance Act you
mentioned two cases. Were those cases challenges to the Foreign
Intelligence Surveillance Act?
Judge BORK. Oh, no. They were challenges to the President's con-
stitutional power to issue a surveillance order without a warrant.
Senator KENNEDY. SO the Foreign Intelligence Act has never
been found to be unconstitutional?
Judge BORK. Oh, no.
Senator KENNEDY. Just to summarize, Judge Bork, the American
people rely on the Congress to protect them from abuses of power
by the executive branch. But, Judge Bork, whenever Congress has
tried to curb abuses, you always seem to side with the President.
You broke the law in Watergate when you obeyed President Nixon
and fired Archibald Cox. You have testified that court-appointed
special prosecutors are unconstitutional, which suggests that you
would let the administration investigate itself when corruption is
the issue.
You oppose limits on the national security power of the Presi-
dent, even when the issue is wire-tapping and eavesdropping on
American citizens. Those cases you mentioned did not address the
constitutionality of the act.
You believe that Congress can never use the courts to challenge
the President when he abuses his power. You wrote that the War
Powers Act was probably unconstitutional. You suggested that Con-
gress has no power to stop the President from taking us into a
wider war in Vietnam. And that same reasoning would apply to
sending U.S. military aid to the contras in Nicaragua or even sell-
ing the arms to the Ayatullah in Iran.
The Constitution calls for checks and balances. You seem to feel
that when it comes to the relation between Congress and the Presi-
344
dent, instead of checks and balances the President has a blank

check and the Congress exerts no balance at all.
You say you believe in the original intent, Mr. Bork, but the
Founding Fathers certainly did not intend an all-powerful Presi-
dent.
Judge BORK. Senator Kennedy, I must say I think those are most
unfair characterizations of my views. Let me startI hardly know
where to start.
In your case, when you challenged President Nixon's pocket veto,
and that pocket veto was held unconstitutional by the D.C. Circuit,
I did not take certiorari because I thought the D.C. Circuit was cor-
rect.
When the Ford administration began to use a combination
return veto and pocket veto, I announced that that was incorrect,
and I would not argue their case in the Supreme Court.
I then prepared a lengthy analysis of the constitutionality of the
pocket veto and concluded against the President, which I sent to
Attorney General Levi. He sent it to the White House with a nota-
tion that he agreed with my analysis and that I would not argue
the case if they had to go to the Supreme Court, which would be a
clear signal that the Solicitor General disagreed with him.
I concluded in that analysis that when Congress adjourns and
leaves behind an officer to receive a return veto, which is quite dif-
ferent in its consequences from a pocket veto, the President may be
required to use a return veto and not a pocket veto, because that
was the original understanding, so far as I could tell, of the pocket
veto clause.
That is an example where I sided with Congress against the
President when I was in the executive branch.
Now, you said a number of other things, that I broke the law in
Watergate. I said yesterday that I did not break the law in Water-
gate. There is no existing court opinion that says I did, and I gave
Senator Metzenbaum the reasons why I thought I did not break
the law in that case. And I should say, I was not in Watergate. I
came down here June 27th of 1973. I did not even know the princi-
pal characters in that. I have never met them.
Senator METZENBAUM. YOU said there is no existing opinion?
There certainly is.
Judge BORK. There is not. That was a vacated opinion, Senator.
Senator METZENBAUM. The opinion is there.
Senator HATCH. But it was vacated.
Judge BORK. It is in print. It has been declared to have no legal
force or effect whatsoever.
Senator KENNEDY. Mr. Chairman?
The CHAIRMAN. Senator Kennedy has the floor and Judge Bork.
Let it proceed that way.
Senator KENNEDY. Before we leave standing, did you think the
Court was correct on the standing?
Judge BORK. The congressional standing? No. I said that in
Barnes v. Kline, Senator.
You said I think the special prosecutor statute is unconstitution-
al. I must remind you, Senator, that I said the ones that were being
proposed back in 1973 I thought unconstitutional. It is a very dif-
ferent statute now.
345
You said I think the War Powers Act is unconstitutional. I think
there are parts of it, if applied in certain ways, may be unconstitu-
tional, and I think the legislative veto aspect of it has been held
unconstitutional. I do not know about the rest of it. In fact, the
notice provisions and the reporting provisions seem constitutional.
So I do not think my views are accurately characterized by your
final remarks.
Senator KENNEDY. Just finally, did you also decide not to bring
the Sampson case before the Court because you were afraid of the
decision upholding congressional standing by the Court?
Judge BORK. Well, I thought that pocket veto was so unconstitu-
tional, the President's use of it, that it would put pressure on the
sometimes courts in order to get to an issue tend to overlook the
jurisdictional issue. I thought the poorness of the case on the
merits might damage the case on the standing issue. I do not know
if it would have or not, but any litigator thinks about things like
that.
Senator KENNEDY. Did you think it would, at the time?
Judge BORK. I was not sure, but since I had no interest in trying
to uphold that pocket veto, I saw no point in going upin fact, I
was sure I would lose on that pocket veto. I saw no point in going
up and putting just the question of congressional standing in issue,
and I certainly had no power or authority to go up and said, "I
want to discuss congressional standing, although I agree with Sena-
tor Kennedy on the pocket veto." That would not be a case or con-
troversy.
Senator KENNEDY. My time is up, Mr. Chairman.
The CHAIRMAN. Thank you. Judge, as I said, we will take a 5-
minute break. If there happens to be a vote, it will be more like ten
minutes, and we will come back. Before we adjourn for lunch, we
will do Senator Hatch and Senator Metzenbaum. Then we will ad-
journ for lunch.
We will probably be recessed for approximately 10 to 15 minutes
while we go vote.
[Recess.]
The CHAIRMAN. The hearing will come to order. We will, as I
said, take two more Senators, and then break for lunch.
Senator Hatch.
Senator HATCH. Thank you very much, Mr. Chairman.
Judge Bork, I have sat through hours and hours of these hear-
ings with you. I personally want to compliment you because I think
that on this particular day, September 17, 1987, 200 years of histo-
ry and the Constitution, I think you have done as much as anybody
else or any program on television or any commentator to talk
about the viability of our Constitution and how it works and how
great minds help it work than anybody else will today. I think it is
a very historic occasion to have you sitting here in front of this
committee answering these very, very technical and difficult ques-
tions.
Over the last three days, you have taken some of the toughest
issues I have ever seen, and you answered them with aplomb, with
credibility, no question with erudition, and no question within the
mainstream of the law of this country, or any law anywhere.
346
I find it kind of interesting that Senator Kennedy's questions

ranged from the War Powers Actand I thought you made it very
clear what some of the real discrepancies and problems are with
regard to that particular bill; the Foreign Intelligence Surveillance
Act, you could not have given a better explanation off the top of
your head than you did on that; the Special Prosecutors or Inde-
pendent Counsel Act, the question of standingvery, very difficult,
complex constitutional and legal issues.
Once again, we heard Senator Kennedy suggest that you broke
the law when you followed President Nixon's order to fire Archi-
bald Cox. Now, that is false. No court opinion remains valid today,
or even remains on the book, that says that you have broken the
law. In fact, to the contrary. A single federal judge who was caught
up in the momentous events of that occasion basically said some-
thing to that effect, and his opinion was vacated. I think Senator
Kennedy knows that. That is why you were right when you said he
was being unfair in some of these characterizations. And I only
choose that one unfair statement to bring to the attention of you
and our public out there.
That case is a nullity. It was erased. It was wiped off. It is zip as
far as the laws of this land is concerned. It was so fallacious that it
had to be erased. As a matter of fact, the people who asked for it to
be erased were the plaintiffs. You wanted the case to be appealed
as far as I know.
Judge BORK. Right.
Senator HATCH. Because you were so sure that it would be re-
versedso were the people who brought it because they also, I pre-
sume, were sure it would be reversed. Upon reversal, it would be
erased in a way that would be much more persuasive than the
plaintiffs just voluntarily asking for a vacated order.
Let me just ask you a question about the significance of the va-
cated opinion. Is it not true that the Supreme Court in the U.S. v.
Munsingware case said a vacated opinion "does not spawn any
legal consequences"?
Judge BORK. That is entirely true, and the reason they vacate an
opinion under circumstances like that is that the party never had
his chance for his rights to get appellate review. If the case no
longer presents a live controversy, the party who appealsand
that was medoes not get his day in the appellate court. So when
they hold that a case is moot, no longer a live controversy, they
remand with instructions to vacate under U.S. v. Munsingware.
Senator HATCH. That is why you called it unfair to characterize
it as having broken the law.
Judge BORK. That is true. And I also think there is good legal
reason, which I gave yesterday, to think that that was not covered
by prior cases.
Senator HATCH. I think that makes the case pretty well. I think
it is unfair the way a number of these outside groups have been
characterizing your legal decisions. I think some of the inflamma-
tory rhetoric you have dispelled, almost all of it, in your discus-
sions here over the last three days, the misuse of statistics, the
unfair methodology, the unfair ads, the unfair rhetoric that has
been used all over the country. You know, we are not talking about
appointment of a local dogcatcher here. We are talking one of the
347
most important appointments in the history of our country, and we

are talking about it on the most important day in a long time, the
200th year bicentennial anniversary of our Constitution. I just sus-
pect that you deserve fair treatment.
I also get a kick out of the fact that Senator Kennedy seemed to
say that with regard to the War Powers Act, this was a very impor-
tant bill, that almost an overwhelming majority of the people in
Congress passed it.
Does the fact that a bill is passed by an overwhelming majority
of Congress guarantee its constitutionality?
Judge BORK. Not in the slightest, Senator.
Senator HATCH. YOU bet it does not. As a matter of fact, Gramm-
Rudman is a perfect illustration. A lot of these people voted for
Gramm-Rudman that hate the bill. But one aspect of that was
stricken down. It was your colleagueI was going to call him Sena-
tor Scalia, to misuse the termbut Justice Scalia and others who
struck that provision down.
How about the Chadha case? The Chadha case is a perfect illus-
trationthe one that you brought up herethe famous veto case.
In that particular case, when it was stricken, invalidated hun-
dredsat least probably a hundredmostly overwhelmingly
passed statutes of the Congress of the United States.
Judge BORK. It certainly did.
Senator HATCH. SO the fact that Congress thinks something
should be done in an overwhelming fashion does not necessarily
mean that it is constitutional.
Judge BORK. I think the number of Congressmen voting for a
statute has nothing to do with its constitutionality. If it passes by
one vote or passes unanimously, it is still a statute and its constitu-
tionality must be judged in the same way.
Senator HATCH. The thing that has interested me over the last 3
days is I do not see how anybody, whether you are trained in the
law or not, would not be impressed with the way you have handled
these very intricate, difficult questions. And you have done it off
the top of your head. There is hardly anybody in this country that
can do that.
It is difficult for me to understand why the furor about your
nomination here. It ought to be automatic, just as your nomination
was approved and confirmed to the second most important court in
this country, the Circuit Court of Appeals for the District of Colum-
bia.
I wonder why 5 years later all of a sudden you are in a contest
here, and I think the people out there are wondering too. If they
really look behind it and they see some of these unjust accusations
and some of these unjust characterizations, some of these rabid,
radical groups out there trying to destroy a reputation that has
been built very, very well over many, many years, I think they are
going to be a disgusted as I am, and I hope they are getting that
point.
Let me go to some specifics, though. We have been talking about
a number of civil rights cases and in particular I would like to
dwell on the Katzenbach v. Morgan case, the 1966 case. That is
where the Supreme Court upheld a Congressional statute that re-
348
defined the words of the Constitution itself as I view it. Is that a

fair characterization?
Judge BORK. That is exactly what happened, Senator.
Senator HATCH. This case involved the constitutional validity of
a non-discriminatory literacy test. Earlier, in 1959, the Supreme
Court had upheld the validity of non-discriminatory literacy tests
and Lassiter v. Northampton is a perfect illustration.
But Congress then disliked that 1959 decision and therefore it
overturned it by statute. Have I been fairly accurate in my charac-
terization?
Judge BORK. That is correct. Congress did not overturn all liter-
acy tests. It overturned literacy tests in particular kinds of cases.
But they were, as you say, non-discriminatory.
Senator HATCH. Some commentators have suggested that your
comments in opposition to Katzenbach were an effort to reinstate
literacy tests for voters.
Judge BORK. Absolutely not.
Senator HATCH. Let me ask you directly, so nobody has any ques-
tion about it, was your criticism of the Katzenbach case based on
your approval of literacy tests?
Judge BORK. Absolutely not, Senator. I have, in matter of fact, no
view of literacy tests. I have never looked at how they operate. I
know some of them are discriminatorily used, but if they are non-
discriminatory, I have no view of how they operate and none of my
criticisms of any of these cases implies agreement with the statute
which was being discussed. None of them.
That is only for a result oriented judge, a judge who wants re-
sults. I do not care about that. I care about whether it comes out of
the Constitution and whether it is reached by proper constitutional
reasoning.
Senator HATCH. Other commentators have suggested that your
criticism of this case indicates opposition to Congressional attempts
to overcome or to remedy past discrimination. Now, do you agree
that Congress has the power and should use those powers to pro-
hibit any literacy test that is employed to discriminate on the basis
of race?
Judge BORK. Of course. Congress has the power and so does the
Supreme Court. No literacy test that is used to discriminate can
stand scrutiny under the equal protection clause of the 14th
amendment. And Congress, in the Voting Rights Act, has gone fur-
ther under its remedial powers under section 5 of the 14th amend-
ment, to establish prophylactic measures to prevent discrimination
from creeping into the voting process.
Senator HATCH. If I understand your argument, you said in the
Katzenbach case that if Congress can undertake its own interpreta-
tion of the Constitution by a mere majority vote, then the Constitu-
tion is not going to be the anchor holding our nation in place
during political crises; is that right?
Judge BORK. Well, let me make two points about that, Senator.
In 1803 Chief Justice John Marshall decided the case of Marbury v.
Madison in which he for the first time gave an extensive rationale
for the power of the judiciary to strike down statutes. Central to
his reasoning was the fact that the Constitution would be meaning-
less if Congress could alter it by a mere statute.
349
Katzenbach v. Morgan is in direct conflict with that historic deci-
sion because it did allow Congress to alter a constitutional provi-
sion by statute.
The other point I want to make is this, when I wrote suggesting
thenot decidingbut suggesting the constitutionality of the
President's 1972 bill placing limitations on bussingnot abolishing
bussingplacing some limitations on it, I could easily have relied
upon Katzenbach v. Morgan if I were result oriented. In what I
wrote I explicitly said, it is a bad decision, I will not rely upon it to
get my ends.
Senator HATCH. In other words, you could have used a conserva-
tive approach to get what you wanted if you were results orient-
ed
Senator HATCH. as they have used a liberal approach by using
Katzenbach to get whatever liberal result they want.
Judge BORK. Yes. But my views in judging are not liberal or con-
servative.
The other episode is, of course, my opposition before Senator
East's subcommittee to the Human Life Bill which would have
overturned Roe v. Wade, the abortion decision, by statute. And
again, I opposed that billSenator East's billbecause it rested
upon Katzenback v. Morganthat is, the power of Congress to
change the Constitution by statuteand I said Congress cannot do
that.
Now, Congress can participate in changing the Constitution, but
it does so by proposing an amendment to the Constitution which
must go to the States.
Senator HATCH. Yes, by doing it pursuant to Article V of the
Constitution.
Judge BORK. That is right. There is a constitutional procedure for
Congress to participate in altering the Constitution, but it is not by
passing a statute. It is by proposing a constitutional amendment.
Senator HATCH. Well, it is interesting that we on this 200th anni-
versary bring up the venerable case of Marbury v. Madison because
basically that established the principle of judicial review and if we
go the route of the Katzenbach case the way you have discussed it,
then it would become the principal of political review rather than
judicial review.
Judge BORK. That is right. It would be a revolution in our consti-
tutional structure and would mean the Constitution effectively con-
trols nothing that the Congress wants to do.
Senator HATCH. Anytime Congress wants to overrule it, they can
do it, basically, under the Katzenbach theory.
Judge BORK. Under Katzenbach. Katzenbach could be a disaster
for minorities. I mean, we all assume that Congress will only use
its powers to alter the Constitution in ways that we like. That is by
no means true. One cannot be sure of that.
Senator HATCH. I think your position not only is logical, it
sounds like the only sound course of constitutional interpretation.
Let me just say, Justices Harlan and Stewart dissented from that
decision, saying it would be a, quote, "sacrifice of fundamentals in
the American constitutional system, the separation between the
legislative and judicial function," unquote.
350
Four years after Katzenbach the Court refused to extend the doc-
trine to uphold the constitutionality of Congress' attempt to lower
the voting age from 21 to 18. So they refused to extend Katzenbach.
That was in Oregon v. Mitchell. And as a result of that, Congress
then did act pursuant to constitutional authority, went to article V
and passed an amendment by the appropriate two-thirds vote and
went out and got it ratified by three-quarters of the States and
today 18-year-olds can vote. That is the appropriate way to resolve
these matters. Not by mere statute.
Senator HATCH. That is a principal position. I might add that in
that case, Oregon v. Mitchell, which said that Congress cannot just
go out and by statute use Katzenbach to allow 18-year-olds to vote
without going through the constitutional procedure that was re-
quired. In that case Justices Burger, Stewart, Harlan, Black and
Blackmun voted against the Katzenbach principal.
Moreover, Justice Powell cited Harlan's Katzenbach dissent with
approval in the City of Rome case. Of course, that was a voting
rights case and the very person you are to replace cited those dis-
sents as reasonable.
Now, he too endorsed the view that you have taken of this par-
ticular case, so once again you are in excellent company, even
though your critics have tried to distort what you have said in this
particular area. So those who criticize your view it seems to me it
is incumbent upon them to also explain why they are criticizing
Justices Harlan, Black, Burger, Stewart, Blackmun and Powell.
So when anybody says you are outside of the mainstream, then I
suspect they are saying they are too.
Judge BORK. There seem to be a lot of us out there, outside the
mainstream.
Senator HATCH. There seem to be a lot of you top experts out
there. That is right.
Let me ask another question. You testified, as you have men-
tioned, against the Human Life Bill in 1981. That was an attempt
by certain Congressmen to redefine the term "person" in the Con-
stitution to include unborn children. You are criticized by some for
opposing this right-to-life initiative, albeit a misguided right-tc-life
initiative.
Now, did you anticipate the consequences of opposing this right-
to-life initiative before your testimony in 1981?
Judge BORK. Certainly. I knew that a number of groups who
were part ofwho were the conservative coalitionif you want to
put it that way, would be extremely angry with me for opposing it.
Senator HATCH. They were.
Judge BORK. They were extremely angry with me for suggest-
ingin fact, I think I had a debate on McNeil/Lehrer onceyou
were not angry with me, but a lot of people were angry with me.
Senator HATCH. I was on your side on that one.
Judge BORK. They were suggesting that I said the Congress could
not constitutionally take away the Supreme Court's jurisdiction in
abortion cases. I do not think the exception clause of article III can
be used to take away jurisdiction because you do not like the re-
sults of a case.
351
Senator HATCH. Had you wanted to, you could have used Katzen-
bach to justify that type of a decision.
Judge BORK. Certainly.
Senator HATCH. YOU could have just said that Congress can do
this under a Supreme Court decision establishing that Congress by
majority vote in these types of cases could do exactly that. But you
held to a principle ground that it did not make any difference what
is liberal or conservative, but whether it is right judicially. I think
that needs to be pointed out.
You pointed out the issue on bussing. You could have easily
taken that case to justify overturning some of the bussing decisions
in this country.
Judge BORK. I certainly could have. I could have also taken the
position that Congress has the power to take away the jurisdiction
of the Supreme Court under article III, and I refused to take that
position.
Senator HATCH. The reason I am pointing this out is because you
have been accused of being potentially one of those who would use
the powers of the judicial branch to bend the law to meet your per-
sonal ideological beliefs, and I think these instances are perfect il-
lustrations as to why you stood tall against ideology and did what
was right under the law.
Judge BORK. That is what I thought I was doing, Senator. I still
think so.
Senator HATCH. That is what I think you were doing, as well,
and I think that the criticisms that you have undergone are base-
less and false and I think, basically, scurrilous.
Now, let me just go to a couple of other things. Let's talk about
your civil rights record as Solicitor General. We have heard many
allegations that you, Judge Bork, are insensitive to civil rights of
minorities and women. One distorted charge even alleged that you
find no basis for the rule that the federal government may not
engage in racial discrimination.
Now, these allegations continue to say that theone of them
said, quote, "the vigor with which you would enforce the Boiling v.
Sharpe case would be colored by your conviction that Boiling itself
is bad law."
Now, would your enforcement be hindered by an academic con-
cern about the way that decision was reached?
Judge BORK. NO. A lot of people have had concerns about the
way that decision was reached, but it is firmly in place. A lot of
expectations, a lot of institutions and so forth have grown up
around it. The due process clause has now been repeatedly used as
if it had an equal protection component in it. I have no desire and I
would not attempt either to overrule Boiling v. Sharpe or to get
the equal protection component out of the due process clause. That
is established law.
Senator HATCH. That is twice you have made that point and I
think it ought to now be made moot on that particular question.
Judge BORK. Pardon me, Senator. You know, it occurs to me,
somebody suggested to me overnightand I do not want to take a
position on itbut I was asked whether I could think of a way to
justify Boiling v. Sharpe on some other grounds and somebody sug-
gested to me that it might be like my analysis of Pierce v. Society of
352
Sisters, which was an attempt to stamp out private schools that

taught religion, and I said that could be stoppedthe attempt to
stamp them outcould be stopped on first amendment grounds.
There was a statute in Meyer v. Nebraska which prohibited the
teaching of students in a foreign language, and I said that statute
could be invalidated on first amendment grounds.
It has been suggested to me, and I do not take a position on it
either way, that Boiling v. Sharpe, which struck down the statute
segregating students on the basis of race, might also conceivably be
justified on first amendment grounds. That is just a theory. I was
asked whether I could think of a way one might approach it legiti-
mately. That might be a way. I do not take a position on it.
Senator HATCH. Without reference to any specific cases, is it fair
to say that you would feel compelled as Justice of the United
States Supreme Court to refuse to enforce any law or policy that
denied any citizen the right to vote or the right to equal protection
of the laws because of his or her race?
Judge BORK. That is absolutely true, Senator. I have endorsed ev-
erything from Brown v. Board of Education on up. The Voting
Rights Act, I have decided a case under and upheld the Voting
Rights Act.
Senator HATCH. Let's get into that. Your words, I think, again,
completely dispose of the charge that you are insensitive to civil
rights. Moreover, I would suggest, again, that your actions speak a
lot louder than words; certainly the words of your detractors.
And your actions are even more impressive than your words
with respect to civil rights because both as Solicitor General and as
a judge on the D.C. Circuit, my research indicates that you have
never advocated a position less sympathetic to minority or female
plaintiffs than that ultimately adopted by the Supreme Court or
Justice Powell.
In other words, you have consistently been just a sympathetic or
more sympathetic to civil rights than the current Supreme Court
and the justice that you would replace.
Now, I realize that the one exception to this rule would be cases
where a federal law or policy was challenged under civil rights law.
In such cases, the Solicitor General is compelled to defend the le-
gality of government actions, except in the most egregious cases.
I realize that you may not have analyzed your own record from
this standpoint, but outside of your duties as Solicitor General, can
you think of a single time where you as Solicitor General or as a
judge advocated a position less favorable to minorities or women
than that adopted by the Supreme Court and/or Justice Powell?
Judge BORK. There is no such case, Senator. This reminds me of
questions asked by Senator DeConcini, and when the Senator is
here, I did collect or have collected the briefswell, I may as well
do it nowthe briefs I filed in the Supreme Court when I was So-
licitor General supporting the rights of women, including amicus
briefs, where I had more latitude, and I have collected, as well, my
substantive decisions on women's and minority rights, and as I said
yesterday, in seven out of eight cases I held for the women or the
minority.
Now, Senator Humphrey mentioned yesterday that he had a case
I did not have on here, which was age discrimination. But I think
353
since the subject that was raised by Senator DeConcini was women
and minority rights, I have not included the age discrimination
case on this. But I would like to submit those for the record, these
compilations of my briefs and my opinions.
The CHAIRMAN. Without objection, they will be put in the record.
[Material follows:]
354
SUPREME COURT BRIEF'S WHERE SOLICITOR GENERAL BORIC

SUPPORTED THE RIGHTS OF MINORITIES
1. Runyon v. McCrary, 427 U.S. 160 (1976), which affirmed that

Section 1981 applied to racially discriminatory private contracts.
(Amicus)
2. Lau v. Nichols, 414 U.S. 563 (1974), which ruled that Title VI
and possibly the 14th Amendment reached actions discriminatory in
effect, even where the actions were not intentionally discriminatory.
(Amicus)
3. Fitzpatrick v. Bitzer, 427 U.S. 445 (1975). The United States,

as amicus, successfully argued that the 14th Amenaawnt,effected a
basic change in the constitutional relationship between state and" "~
national governments and that Section 5 of that Amendment gives
Congress complete power to remedy violations of that Amendment,
including the power to abrogate sovereign immunity.
(Amicus)
4. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), which held

that an employee may sue in court under Title VII employment
discrimination statute even though the Union had lost on the issue
of discrimination in arbitration.
(Amicus) '
355
5. Albemarle Paper Co. v.'Moody, 422 U.S. 405 (1975), which made
it significantly easier for plaintiffs to prove employment discrim-
ination claims on the basis of a discriminatory "effects" test.
(Amicus)
6. Franks v. Bowman Transportation Co., 424 U.S. 747 (1976).

As in Albemarle, Bork's amicus brief successfully urged the Supreme
Court to make it significantly easier for plaintiffs to prove
employment discrimination and receive full relief for such viola-
tions.
(Amicus)
7. Beer v. United States, 425 U.S. 130 (1976), Solicitor General

Bork argued that although a new reapportionment plan increased
minority voting strength, the plan nonetheless had a discriminatory
"effect" because other proposed plans would have done more to
increase the influence of minority voters. The Supreme Court (per
Justice Stewart) (5-3) rejected Bork's expansive interpretation of
the Voting Rights Act. Instead, the Court held that the Act was
satisfied so long as the new electoral scheme did not further
dilute the minority vote.
- 2 -
356
8. Washington v. Davis, 42'6 U.S. 229 (1976), Bork unsuccessfully

argued that employment tests having a discriminatory "effect"
violated Title VII.
9. Teamsters v. United States, 431 U.S. 324 (1977), the Supreme

Court rejected Bork's argument that wholly race-neutral seniority
systems violated Title VII if they perpetuated the effects of prior
discrimination.
10. Pasadena Board of Education v. Spangler, 427 U.S. 424 (1976),

Bork argued that a school district which had already faithfully
implemented a wide-spread busing plan could be required by a court
to achieve a more perfect racial balance. The court disagreed,
holding that the lower court's action directly contradicted Supreme
Court precedent foreclosing the use of busing to achieve perfect
racial balance.
11
United Jewish Organizations v. Carey, 430 U.S. 144 (1977),
which held permissible under the 14th and 15th Amendment race-
conscious electoral redistricting to enhance minority voting
strength.
12. Virginia v. United States, 420 U.S. 901 (1975). In this case
Bork successfully urged the Court to hold that the State of Virginia
was not entitled to be relieved of the special burdens imposed by
Section 5 of the Voting Rights Act.
- 3 -
357
SUPREME COURT BRIEPS WHERE SOLICITOR GENERAL BORK

SUPPORTED THE RIGHTS OF WOMEN
1. General Electric Co. v. Gilbert, 429 U.S. 125 (1976). Bork's

amicua brief argued that employment discrimination based on pregnancy
violated Title VII of the Civil Rights Act of 1964. Six Justices
rejected this argument. In 1978, Congress adopted Bork's position
when it amended Title VII to prohibit discrimination on the basis
of pregnancy.
(Amicus)
2. Vorchheimer v. Philadelphia, 430 U.S. 703 (1977), whore the

United States as amicus argued that single-sex schools are
unconstitutional and illegal if not equivalent in the educational
offerings, and said the Court should not reach the question whether
such schools are unconstitutional even if educational offerings
were equivalent. The Court was equally divided and issued no
opinion.
(Amicus)
3. Corning Glass v. Brennan, 417 U.S. 188 (1974), a landmark "Equal

Pay Act" case which ruled that men could not be paid more than
women for similar jobs on different shifts.
358
Senator HATCH. Let me just say, on the other hand, can you
think of any cases where you have advocated an advance in civil
rights that was rejected by the Supreme Court and/or Justice
Powell?
Judge BORK. Yes, I can think of one offhand. I think that was the
General Electric case.
Senator HATCH. General Electric v. Gilbert case.
Judge BORK. Yes, where the brief argued that employment dis-
crimination based on pregnancy violated title VII of the Civil
Rights Act of 1964, and six Justices rejected my argument. But
then Congress, in 1978, adopted my position when it amended title
VII.
Senator HATCH. NOW, is that not interesting. Here is a situation
where you are being accused of being insensitive to civil rights
where you advocated more than the Supreme Court was willing to
do; and then later the Congress adopts your positionI might add
with my vote for it, out of my committee. That is interesting.
Congress passed the Pregnancy Discrimination Act in 1976, as I
recall, to overturn the Supreme Court's restrictive rating in title
VII, and we really adopted the position that you argued in the
Court at that time.
Let me look at another example. Would you sketch the issue in
the case of Washington v. Davis. That is a 1976 case where the dis-
parate impact on minorities appeared with regard to written ex-
aminations given to job applicants, if you recall that case.
Judge BORK. Well, I am looking for it here. I do not know if it is
in my
Senator HATCH. Let me see if I can help on that. In that case,
you contended that the employment test with a discriminatory
effect should be unlawful under title VII of the Civil Rights Act of
1964. The Supreme Court decided against your broader reading of
the law and in favor of the intent test.
Now, do you recall how Justice Powell voted on that case?
Judge BORK. NO, Senator. I cannot say that I do.
Senator HATCH. He disagreed with your broad reading of the
civil rights law. Again, you were broader than Mr. Justice Powell
was since you advocated as Solicitor General. I would like to em-
phasize that I do not offer these observations as a commentary on
Justice Powell's record. I thought he was a great Justice and a
wonderful man. I think we all revere him as a great jurist.
My only point is that it flies in the face of the short-sighted and,
I think, misleading effort to resort to labels to characterize your
work with regard to civil rights. It again adds to my position and
my case that I think we are making here that you have been equal
to or more than an advocate in civil rights than your predecessor,
assuming you are confirmed to this position.
Judge BORK. Well, Senator Hatch, actually, I do not know where
these charges that I would not decide cases in favor of minorities
or women come from, because I have done that consistently in both
government positions I have held.
Senator HATCH. YOU sure have. Let me just read the list of a
whole bunch of cases. Let me list them at one time, and let me
mention them all together.
359
In Beer v. U.S. in 1976, you contended that a New Orleans reap-
portionment act violated the Voting Rights Act because it diluted
black voting strength.
In Teamsters v. U.S. in 1977, you argued that a seniority system
that perpetuated the effects of discrimination violated title VII.
In Pasadena v. Spongier in 1975, you contended that even a
school district with a busing plan can be ordered to achieve even a
better racial balance.
Now, in each of those cases, Justice Powell voted against your
effort to advance civil rights.
Judge BORK. As you say, Senator, you by no means intend to
criticize Justice Powell.
Senator HATCH. NO, I am not.
Judge BORK. I want to make sure everybody understands that be-
cause I, too, think he is a great Justice and I, too, know him per-
sonally and think he is a great man. He voted against me, but that
does not say anything about him.
Senator HATCH. I agree with that, and I would just say that I
agree with you that Justice Powell has an excellent record. Yet in
these five cases I have just named, his actions were actually less
sensitive to civil rights than yours, which I think flies in the face of
the arguments against you: that you are out of the mainstream;
that you are going to upset the balance; that you are going to hurt
the Court, et cetera, et cetera. And I think, again, it goes to some
of the scurrilous things that have been said about you that I think
have no basis whatsoever.
Now, I think people could read those five cases, and they could
conclude that Justice Powell was not in tune with the minority
needs. Just the opposite is true. You know it and I know it, yet we
have heard in one or two isolated quotes, far less authoritatively
than those five votes that you did, that have been cited by the op-
position to your record on a specific issue.
I might just make one more comparison with the current Justice.
In the 19 amicus briefs you filed, friend-of-the-court briefs that you
filed as Solicitor General, do you know which Justice who is still on
the Court sided with you most often?
Judge BORK. I do not, Senator.
Senator HATCH. That is not a fair question because you probably
did not analyze that.
Judge BORK. NO. I used to just count whether I won or lost.
Senator HATCH. Well, it was actually Justice Brennan.
Judge BORK. IS that right?
Senator HATCH. That is right. In fact, during your tenure as So-
licitor General, you filed 19 friend-of-the-court briefs in civil rights
cases other than those where a federal law or policy was chal-
lenged. In those 19 cases, you as Solicitor General sided with the
minority or female plaintiff 17 times, 17 out of 19 for those who
would like to know.
In the two cases where you felt compelled by law to argue
against the minority or female, the Supreme Court agreed with you
in those arguments.
My time is up. Let me just finish my remarks on this one point. I
am sorry, Mr. Chairman.
360
Thus, 19 out of 19 times, you were at least as sensitive to civil

rights as Mr. Justice Powell and the Supreme Court, and in 17 of
19 times, you sided with minorities and women. Now, some have
said this means little because you were only defending government
policy. Does a Solicitor General have to file amicus or friend-of-the-
court briefs?
Judge BORK. Oh, no.
Senator HATCH. Can you explain the amount of discretion that a
Solicitor General enjoys with regard to litigating strategies and po-
sitions?
Judge BORK. Well, I think the Solicitor General, if he is defend-
ing the government, has very little discretion unless the govern-
ment's position is not intellectually respectable. And I have con-
fessed error in the Supreme Court when that was the case.
But when he is filing an amicus brief, he has more latitude to
decide whether or not the position being taken is not just intellec-
tually respectable, but really ought to prevail or come closeyou
know, I do not mean ought to prevail. It is kind of hard to state a
precise calibration of the degree of his latitude, but I think when
he is filing an amicus brief he has to be more in sympathy with the
position than he does when he is defending a client.
Senator HATCH. My time is up. I have a lot more I would like to
go into to show that the accusations against you are not only scur-
rilous but unfounded. I would also like to, before we are through
here, go into your record as a judge because I think people out
there need to hear this, because some of the scurrilous, unfounded,
ridiculous, I think scandalous and libelous comments made about
you need to be dispelled. It is unfortunate that in this forum you
really do not have enough time to do it. If we had enough time, we
would dispel every doggone one of them.
I think the American people need to know that. It is about time
they realize what a tremendous nominee they have, and I hope ev-
erybody out there is listening to your comments on the very, very
important 200th year anniversary of the Constitution.
Judge BORK. Thank you, Senator.
Senator METZENBAUM. Judge Bork, this question of your action
in firing Arch Cox is a matter I addressed yesterday, and I had no
intention of returning to it today. But since I have heard Senator
Kennedy, Senator Hatcheven somebody when I walked outside, a
member of the mediaraise the question of whether it is appropri-
ate to question the illegality of an act that you did in view of the
fact that the decision was vacated, let me put that in my own con-
text.
That is the only ruling of any court in connection with your
action, and that court decided that your action was illegal. Now, it
is a fact that thereafter you were precluded from having an oppor-
tunity to appeal that decision because the case had become moot.
There was no longer an issue before the court. That was because
Archibald Cox had gone back to Harvard; he had been replaced
with a new person.
Under those circumstances, Judge Bork, it seems to me that it is
very appropriate to point out the illegality of that act. It is the only
courtit is true you did not have a chance to appeal it. But I must
361
say to you that I still consider it to be a relevant matter in connec-
tion with this hearing.
Judge BORK. Well, Senator, I think it is important when we say
an illegal act, the illegal act was not illegal, and I will explain that,
too. But the illegality, if one existed, was merely that a regulation
was not rescinded before the discharge but afterwards. Now, that is
not a matter of great moral turpitude because I could have rescind-
ed the regulation at any time.
But the reason I think it was not even technically illegal was
that the cases relied upon by the district court judge were cases in
which a department head, like an Attorney General, had issued a
regulation and then had gone ahead on his own discretion and vio-
lated it. In this case, the President gave me an order to discharge
Archibald Cox which I think overrides an Attorney General's regu-
lation. That is why I think the action was legal.
Senator METZENBAUM. Judge Bork, in the Nixon case, the court
specifically decided that the President did not have the legal au-
thority to override a regulation put into place by the Attorney Gen-
eral. That is right on point in that particular case.
Judge BORK. If I remember that case, Senator, I think what they
said was that the President had not attempted to rescind the regu-
lation. That was a jurisdictional argument. Does anybody have the
Nixon case? Do you have a copy of it?
Senator METZENBAUM. Let me read you a quote that my staff just
handed me. Said the court,
It is theoretically possible for the Attorney General to amend or revoke the regu-
lation defining the special prosecutor's authority. So long as this regulation remains
in force, the executive branch is bound by it, and, indeed, the United States as the
sovereign composed of three branches is bound to respect and to enforce it.
That was the Nixon case.
Senator METZENBAUM. AS you remember, in the Gesell case, the
one that found it to be illegal, they indicated that your subsequent
revocation of the regulation and then putting the same regulation
back in place three weeks later, they said that was a ruse, a ruse to
get around the law. That is their phraseology, not mine.
Judge BORK. I know. That is his phraseology. There was no ruse
and no evidence of a ruse. If anybody thought up a ruse by which
he would replace Archibald Cox with Leon Jaworski, he did not
gain anything because Leon Jaworski was a very tough prosecutor.
Senator METZENBAUM. I am not taking issue with that.
Judge BORK. And let me say one other thing. The argument in
U.S. v. Nixon being advanced by the White House lawyers, by the
President's lawyers, was that there was no jurisdiction in the case
because Mr. Jaworski was a subordinate official to the President,
and the President could give Mr. Jaworski an order. The court re-
sponded that as long as the regulation was in force, until the Presi-
dent rescinded the order, there was jurisdiction; but there was no
doubt that the President had the power to rescind that charter. In
fact, in the letter from the President to me that night, he said,
"You are to discharge Mr. Cox and abolish the office of special
prosecutor." The abolition of the office was on paper only. The
office continued intact. But that was a presidential rescission of the
regulation.
362
Senator METZENBAUM. Yes, but the court said in the Nixon case,
"So long as this regulation is extant, it has the force of law."
Judge BORK. So long as it is extant. It was not extant after the
President issued that order.
Senator METZENBAUM. I think the case also held, as I previously
stated, that as long as it was there the President did not have the
authority; that he did not have the legal authority to revoke the
regulation that was in effect. It was the Attorney General's regula-
tion.
Senator THURMOND. Senator Metzenbaum, would you mind pro-
viding a copy of that?
Judge BORK. The fact is the President has the legal authority by
ordering the Attorney General, which is the way it is done. The
contrary position means that an Attorney General, by giving some-
body a charter, can give him life tenure in the Department of Jus-
tice like a professor, and nobody can ever revoke it. That just is not
the way this government runs.
Senator METZENBAUM. Let us say the Secretary of Commerce or
Transportation issues a regulation saying clerical workers will not
be fired without 2 weeks' notice. Or the Secretary of Interior issues
a regulation saying that whistleblowersthat is, employees who
reveal problemswill not be fired without a hearing. Would you
say that the President has the authority to order their firing over
and above that regulation?
Judge BORK. I think the President has the authority to tell the
Secretary of Commerce to rescind that regulation and fire.
Senator METZENBAUM. Correct. He has that authority to tell the
Secretary to rescind the regulation, but not to move in in spite of
the regulation and order the firing or denial of the employee's
hearing.
Judge BORK. Well, that letter from President Nixon, we can
debate the legality of this forever, and we are debating the legality
of a technical deficiency about which came first, the rescission or
the firing. But the letter itself from the President called for the re-
scission of the regulation by saying abolish the office. So that is
what I thought I was doing.
Senator METZENBAUM. Let us go on. Let us talk about antitrust,
a subject dear to you and dear to me. I must say that your book,
"The Antitrust Paradox," which is certainly well written, attempts
to make the point that the antitrust laws do not help consumers
but that, in fact, they hurt consumers.
Judge BORK. Senator, may I respond to that?
Senator METZENBAUM. May I just finish?
Judge BORK. I am sorry. I thought you were.
Senator METZENBAUM. YOU certainly can, and I would expect you
to but let me at least finish.
Judge BORK. I am sorry. I thought you were finished.
Senator METZENBAUM. I believe that the antitrust laws are non-
partisan. They first came into being when John Sherman, a Repub-
lican Senator from my own State, authored the law. They have
been in effect for many years. They have been effectively enforced
by Republican and Democratic Presidents, and some Republican
Presidents were particularly strong in enforcing them.
363
I believe the effective enforcement of antitrust laws and those
antitrust laws are important to the free enterprise system. I think
it makes competition work in this country. And I think competition
is important to the consumers of this country, the people who go to
the store and buy something.
What concerns me is that your position with respect to antitrust
is that somehow you are getting something called consumer wel-
fare, and then you have an economic efficiency, and that business
will operate better, and somehow it will help the consumers down
below.
What bothers me, Judge Bork, are those people in my State and
throughout the country who are presently going to a store and
buying products at a discount price, at a competitive price, and you
would take away the right of those retailers to compete; you would
take away the right to keep competition in the country and permit
only two to three companies to operate in the whole nation in any
particular area.
I am frank to say to you, you can write 460 pagesand they are
marvelously writtenbut the little guy out in Ohio, the little
woman who is trying to buy clothes for her children, or the person
who wants to buy a bicycle for their kids, they want to buy it at
the cheapest possible price. And if we were to follow your theory of
the law, they would not be able to do so.
Judge BORK. Senator, my entire book, which was published in
1978, is premised on the question of what best serves consumers,
what best serves consumer welfare. I have not made a single argu-
ment in this book which is not based upon that, and it could be
that I have made some arguments which are wrong. I do not think
they were wrong when I wrote them. Economics continues to ad-
vance. Maybe it will be shown that I am wrong in some respects. I
would be very surprised if eventually I am not wrong in some re-
spects because I do not pretend to have come to the end of econom-
ic theory. In fact, I am simply an amateur economist. I was then; I
am not now.
But everything in that book is an argument from consumer wel-
fare, including the argument that you refer to.
Now, the Supreme Court in the case of restraints upon dealers'
competition has adopted part of my thesis since I wrote it. Part of
it, not all of it.
Senator METZENBAUM. Judge, let us talk about price fixing for a
minute, because it is part and parcel of this whole issue.
You believe that the rule that we have had in this country since
1911 which prohibits manufacturers from fixing the retail price of
their products should be overturned. You have written, and I
quote, that "it should be completely lawful"that is your phrase,
"completely lawful""for a manufacturer to fix retail prices."
In other words, if somebody like K-Mart or Toys "R Us or some
discounter is selling children's shoe at $25 and the manufacturer
wants them sold at $50, under your theory it would be entirely
lawful for the manufacturer to require the retailer to charge the
higher price. Now, that is price fixing, pure and simple, and it has
been illegal since 1911.
My question to you is, and I know you are profound in this area.
I know you studied this area. I know you are an authority on it.
364
But the people in this country who go and want to buy things at
the lowest possible priceand I conducted hearings on how much
lower prices were in discount stores than the regular retail price,
and it was amazing how little people came in and said what it
means to them to be able to buy a little piece of clothing for their
child for $6.95 instead of $10, or to buy a wheelbarrow or some-
thing for their children at a lower price, and those dollars mean so
much.
Tell me in language that you and I can understand, and the
American people can understand, how you can argue that price
fixing is going to help the consumer?
Judge BORK. Well, in the first place, Senator, I think it is essen-
tial to distinguish between price fixing between competitors, which
is illegal per se, meaning that it cannot be justified on any
grounds. I have agreed emphatically with that rule. I think if com-
petitors fix prices they should be punished. They should be sued for
treble damages. They should be criminally prosecuted. No doubt
about it.
We know why people fix prices; they want to make fatter profits
than they should get under competition. We are now shifting to the
case that you bring up, which is, say a manufacturer who wants to
set the minimum price at which his retailers can sell. In 1911 the
Dr. Miles case examined the practice and said, we would not let the
dealers fix the price themselves and therefore it follows that we
should not let the manufacturer fix their price for them.
That argument does not follow. The manufacturer who is fixing
the price of the dealers has no reason in this world to want to give
them a fatter profit. What he wants them to do, usually, is to com-
pete in a different way; compete by providing information, compete
by providing selling services, compete by adding things to the prod-
uct.
Now, those are not bad activities and if he could own those deal-
ers himself, or if he owned them himself, he would probably sell at
the price he fixed and add those services. It is merely a way of
doing by contract what he could do if he owned them, and the pur-
pose is to get these people to compete in other ways and not below
a certain price.
Now, that may be pro consumer or not. It can be viewed as pro
consumer because the manufacturer has no incentive. He is not
getting any monopoly profit out of this. The manufacturer has no
incentive to do that unless more consumers respond to the particu-
lar behavior of dealers that he encourages with that price limita-
tion.
Now, we are into a kind of arcane area
Senator METZENBAUM. But it is not arcane if you are a house-
wife. I took a survey in Cleveland and it showed that consumers
generally save up to a third at discount stores$450 a year on
clothes, nearly $60 a year on electronics, over $40 a year on toys
for the children. The Justice Department has found that prior to
repeal of Miller-Tydings in 1975, the so-called fair trade laws,
prices were nearly 30 percent higher, costing consumers billions of
dollars. That was their determination.
As a matter of fact, I have a pretty good ally on this particular
issue, and that is, President Reagan spoke out against fair trade
365
laws, saying they hurt consumers by keeping prices up. Do you

think that the President was wrong?
Judge BORK. It is only fair, Senator. He can oppose me on resale
price maintenance. I oppose him on the balanced budget amend-
ment. It seems to me we are even up.
But yes, I do not think the Presidentthe President may be
right or wrong, but I do not think he has engaged in this analysis
of the economics of the situation. And remember, consumersif
the manufacturer sets a minimum price, consumers get something
else. They get the additional services and information.
Senator METZENBAUM. What kind of service do you get when you
buy a toy for your child or you buy a little dress for the baby?
Judge BORK. Manufacturers do not typically find it useful to
maintain prices on a product like that. Let me give you an example
from real life. There was a time when you could set resale prices
on things like television and big appliances and so forth. And when
you did that, a store like Marshall Fields in Chicago would carry
the full line of the manufacturer's products so they could show you
every one, and they would have a knowledgeable person there to
explain the differences and so forth, because it paid them to do
that.
Then, when resale price maintenance became impossible, a dis-
count store opened up, and that is quite right. Prices dropped. But
people would come in and shop at Marshall Fields, look at all the
models and get all the information and explanation, write down
the model number, and go over to the discount store and buy it.
That is fine, except what happens is, Marshall Fields stopped sup-
plying the information, showing all the models and so forth.
Now, that cost consumers, too. Some consumers want the infor-
mation and want the services and the manufacturer would not put
in resale price maintenance unless he thought more consumers
would respond to that package of information services and so forth
than would respond to a lower price. Because his only interest is in
selling as many as he can.
Now, I may be wrong about resale price maintenance. That was
the analysis I went through in 1978. There may be new informa-
tion. As I understand itI have not been reading the economic lit-
erature sinceas I understand it, there is new economics about
transaction costs, costs of providing information and so forth. It
may conceivably alter my view if that is brought to my attention.
I am giving you the line of argument I followed in 1978.
Senator METZENBAUM. I understand your line of argument. I am
not at all certain that the consumers of the country who would
have to pay higher prices if your line of argument were followed
could understand it that well.
Judge BORK. Well, they might if they understood they were get-
ting additional services and information in exchange. But I do not
know that I can provide all of that argument to them today. But
let me say this, Senator. If the Congress disagrees with me, all they
have to do is say, no resale price maintenance.
Senator METZENBAUM. I am glad you said that, because Congress
has made it as clear as day that it agrees with the Supreme Court's
original decision outlawing resale price fixing. Despite Congress'
approval of this decision, you have written that the Supreme Court
86-974 0 - 89 - 14
366
is free to overturn the law. In fact, I think you wrote that the law
was adopted by the Supreme Court and may be properly aban-
doned by the Court.
But the fact is that the Congress has repealed the anti-trust ex-
emption for fair trade laws. We have cut off funding, led by a Re-
publican member of the Senate. When the Justice Department
wanted to go in with an amicus brief on a resale price maintenance
case, we have cut off the funding and we have resisted legislative
changes in the law.
Under those circumstances, Congress does not want to change
the law, but you are the one who apparently wants to change the
law through the Supreme Court.
Judge BORK. No. The matter is somewhat more complex than
that. You may be reading fromI do not knowyou may be read-
ing from an article I
Senator METZENBAUM. NO. I am reading from "Antitrust Para-
dox" at page 298.
Judge BORK. All right. In about 1978 or 1979, after the Sylvania
case came down allowing a manufacturer to divide his dealers ter-
ritorieswhich is market division, which has the same effect as
price fixingI then wrotethat is, the Supreme Court is somewhat
inconsistent in allowing market division of dealers' territories so
they cannot compete but not allowing setting the dealers' prices so
they cannot compete on pricebut be that as it may, the Supreme
Court has reached that.
Now, it may be, as I wrote in that article in the "Supreme Court
Review"I think it was, 1978 or 1979that Congress' repeal of the
Miller-Tydings Act and the other act, whose name escapes me at
the moment, should be taken as Congress' will that the Court not
allow resale price maintenance.
I suggested that in that article. I said, that may be the way it
should go. But if that is the case, then the Supreme Court should
say, we do not feel free to revise the rule as to resale price main-
tenances because we think Congress has indicated something with
its repeal of the Miller-Tydings Act. But I said they should say
that.
Senator METZENBAUM. I say, Judge, that in this area your view is
very troublesome. You are on the opposite side of where you usual-
ly are, because here Congress has passed this law, Congress indi-
cates that they like it, and for a court to change it today would be
a rejection of Congress' will. It would be the court making law.
I am concerned, Judge, as to what assurance can you give us that
the antitrust laws will be enforced and consumers protected if you
should become a member of the Supreme Court?
Judge BORK. I can give you every assurance, but it will have to
be according to my understanding of what the law means and what
the economics means.
Let me go back. In the Sherman Act, which is the act we are
talking about, which merely says that restraints of trade are ille-
gal, the Congress rather clearly gave a mandate to the courts to
evolve the rules that would protect competition. And Senator Sher-
man said as much. He said he was really aiming at three classes of
casesin his speech on the floor of the Senatehe was aiming at
price fixing between competitors, he was aiming at monopolistic
367
mergers, and he was aiming at predatory conduct by a firm which

prevented competitors from competing effectively.
Beyond that he said, the courts will have to evolve the rules to
protect consumers from time to time. In the great 1911 cases of
Standard Oil and American Tobacco, written by Chief Justice
White, he explicitly said that these statutes are aimed at practices
which restrict output. He gave three categories of cases.
Senator METZENBAUM. They just told me I have 6 minutes. I do
not want to cut you off.
Judge BORK. All right. I will cut the thing short, but he said, the
statute is aimed at the elementary and indisputable concepts of the
common law about hurting competition. And he built into the rule
of reason, which he announced in that case, a mechanism for evolv-
ing the law as economic understanding progresses. That is quite
clear in the legislative history of the Sherman Act. It is quite clear
in the great rule of reason cases, Standard Oil and American To-
bacco.
That is all I have said on this subject, that as economic under-
standing progresses the law just evolve.
Senator METZENBAUM. I will come back to that, possibly, later.
But I want to talk with you before I conclude today about large
corporate mergers. Today we meet here with an unprecedented
wave of mergers. And from your writings I get the impression that
this greater concentration of power in large corporations does not
disturb you.
It disturbs this Senator and I think it disturbs many people in
this country. In fact, you have written that such trends are desira-
ble and should be allowed to continue until there are only two com-
panies. That is the "Antitrust Paradox" at page 205 and 206, your
book on this subject.
I quote: "We are in an area of uncertainty when we ask whether
mergers that would concentrate a market to only two firms of
roughly equal size should be prohibited. My guess is they should
not. And therefore, that mergers up to 60 or 70 percent of the
market should be permitted."
From this I can only conclude that you would look favorably on a
merger which left only two firms in the oil industry or the airline
industry, the food industry or any other industry. I think at one
point you said that maybe there ought to be three, but it does not
matter to me whether it is two or three.
Judge BORK. Or four.
Senator METZENBAUM. YOU did say two, but the fact is, you
would accept total concentration of economic power in just a couple
of companies, maybe three, depending upon which day you were
writing, and I am not questioning that point. But the point that
bothers me is, competition is so vital to this free enterprise system,
as I said earlier, and if we were to follow your line of reasoning
there will not be any competition in this country because two com-
panies will not effectively compete against each other. It will sort
of be a laissez-faire approach where they will let each do their own
thing.
I would like to get your views on that.
Judge BORK. Yes, Senator. My viewsI was arguing what the
evidence showed about competition in concentrated markets at
368
that time. I do not know if there is additional evidence or not. The

Congress' statutes have been most imprecise about the size of al-
lowable mergers. Section 7 of the Clayton Act, which is the pri-
mary statute dealing with mergers, just says, stop it if it may tend
towards a monopoly or to lessen competition. It does not say any-
thing about what market share should be allowed.
If you look at the legislative history, you cannot find out what
market share should be allowed. If Congress has an economic
theory and says, no fewer than 10, no fewer than 20 firms, that is
fine. I will follow that law. If the economic informationand I do
not think Section 7 of the Sherman Act
Senator METZENBAUM. It is what Bork says that concerns me, not
what Congress says. Because I am concerned about your position
that two or three companies can control a market and that is ac-
ceptable in the free enterprise system.
Judge BORK. I do not think two or three companies can control a
market unless they conspire.
Senator METZENBAUM. But they can buy up all of their competi-
tors. That is what is happening in America today.
Judge BORK. Well, I think most of those are conglomerate merg-
ers, which are a different problem than a horizontal merger.
But if you have three companies in a market and they are not in
collusion, it seems to me that the evidence from various industries,
some of which I cite in the book, suggests that you get hard compe-
tition. If they conspire, you do not. But the structural theory is
that.
Now, I do not think section 7 of the Clayton Act is going to allow
meeven if I still believe that after I hear more evidenceis going
to allow me to say, get down to three.
Senator METZENBAUM. Judge, you say that if you get three com-
panies. The fact is, you have six major oil companies in the world
today and you have a lot of competition besides. But give it a one-
cent or two-cent increase in gasoline and they all go up at the same
time, and that is just a given.
Now, with three companies and no competition beyond that, or
two companies, as you have written, I frankly feel that not only
will the American consumer suffer, but I am convinced that the
American economic system, the free enterprise system, will suffer,
and that is really disturbing to me.
Judge BORK. Well, it may be that you are right, Senator, and
maybe the evidence will show up. But let me say something about
these companies whose prices all go up at the same time. That hap-
pens in the wheat industry. You can have a thousand sellers and
their prices will all go up at the same time. That is because they
are responding to the same supply and demand conditions.
You know, if I walked by on a street corner and people are
standing there and everyone has an umbrella over his head, if it is
not raining, I think there is a conspiracy. If it is raining, I think
they are all responding to the same conditions. And I think that is
what we are talking about here.
Sure all the oil prices go up about the same time. So do the
wheat prices. So do the hamburger prices. But let me say this
Senator METZENBAUM. They tell me my time is up.
Judge BORK. I know, but I want to
369
Senator METZENBAUM. YOU and I will have further time to dis-
cuss this.
Judge BORK. No. I do not want to discuss it anymore. I just want
to say one thing. I never suggested that the law would allow just
two companies to be left. I may have said I thought two companies
would be enough for competition, but I do not think the mood of
Congress in passing section 7 of the Clayton Act would allow me to
do that.
Senator METZENBAUM. I used your quote on that one.
Judge BORK. Well, I said I thought two companies
Senator METZENBAUM. NOW you are saying, well I suggested that
might be all right but I do not really necessarily believe that is the
way the law should be.
Judge BORK. I also said that after saying that might be all right
economically, I said, in deference to the incipiency concept and the
mood of Congress in Section 7 of the Clayton Act, I would have to
require more competitors than that. That is all.
Senator METZENBAUM. We will get back to this later.
Senator KENNEDY. Mr. Chairman, just for a moment, Mr. Bork
mentioned at the end of my round of questioning that he thought
my statement of his views on Presidential power was unfair. I want
to emphasize, Mr. Chairman, the issue in these hearings is Mr.
Bork's views and the points I made were taken directly from Mr.
Bork's own words.
Many of us who are concerned about Mr. Bork's views have ques-
tioned him about many controversial statements he has made as a
professor and a judge. I have compiled a number of these state-
ments on various issues and I would like to ask that a compilation
that he made be made a part of the record for the hearings, and I
am sure as the questioning continues Mr. Bork will have further
opportunity to explain these and other statements that he has
made on the public record during his career. He will have an op-
portunity to explain these later.
[Statements follow:]
370
Senator Edward M. Kennedy

September 17, 1987
BORX ON BORK THE WORLD ACCORDINQ TO ROBERT BORIC
On respect for precedent;

When asked whether he could Identify any Supreme Court doctrines
that he regarded as particularly worthy of reconsideration In the
1986's: "Yes I can, but I won't." (District Lawyer 1985)
"The only cure for a Court which oversteps Its bounds that I know
of is the appointment power." (Senate Judiciary Committee 1982)
"Democratic responses to Judicial excesses probably must come
through the replacement of Judges who die or retire with Judges
of different views." (Society Magazine 1986)
"I have been as severe, as unsparing, as anyone here in my
criticisms of the Judiciary, and I take back not one word."
(Virginia Bar Association 1986)
"[T]he role of precedent in constitutional law is less Important
than it is In a proper common law or statutory model . . . So if
a constitutional Judge comes to a firm conviction that the courts
have misunderstood the intentions of the founders, he Is freer
than when acting in his capacity as an interpreter of the common
law or of a statute to overturn a precedent . . . [A]n
orlglnaliat Judge would have no problem whatever In overruling a
non-orlglnallst precedent, because that precedent by the very
basis of his Judicial philosophy, has no legitimacy."
(Federalist Society 1987)
"What are the chances of restoring legitimacy to constitutional

theory? I think they are excellent. My confidence Is largely
due to a law of nature I recently discovered. To future
generations this will be known, and revered, as 'Bork's wave
theory of law reform.1 . . . [T]he courts addressed what they
regarded as social problems after World War II and often did so
without regard to any recognizable theory of constitutional
interpretation. A tradition of looking to original intention was
shattered. Constitutional theorists from the academies, in
sympathy with the courts politically, began to construct theories
to Justify what was happening. So was non-orlglnalism born.
That wave has become a tsunami and its Intellectual and moral
excesses are breathtaking . . . lT]hese theorists exhort the
courts to unprecedented imperialistic adventures. But the second
wave is rising. When I first wrote on original Intent In 1971,
one of my colleagues at Yale told a young visiting professor not
to bother with it because the position was utterly passe. And so
Indeed it was. But it was more than passe; It was, 1 think, the
future as well. On that side of the issue there are now, to name
but a few, Judges Ralph Winter and Prank Easterbrook, Professor
Henry Monaghan, and former professor, now Chief Justice of the
High Court of American Samoa, Grover Reea. Thure are many more
younger people, often associated with the Federalist Society, who
are of that philosophy and who plan to go Into law teaching. It
may take ten yeara, it may take twenty years, for the second wave
to crest, but crest it will and It will sweep the elegant,
erudite, pretentious, and toxic detritus of non-orlglnalism out
to sea." (Philadelphia Society 1987)
"Not to put too fine a point on the matter, what these

[non-origlnallat] scholars are urging, and what an Increasing
number of students, lawyers, and Judges are accepting, is civil
disobedience by Judges." (Canlslus College 1985)
371
-2-
On hla Judicial philosophy:

"These remarks are Intended to be tentative and exploratory. Yet
at tbl moment I do not aee how I can avoid the conclusions
stated. The Supreme Court's constitutional role appears to be
Justified only If the court applies principles that are neutrally
derived, defined and applied. And the requirement of neutrality
In turn appears to Indicate the results I have sketched here."
(Indiana Law Journal 1971)
"I finally worked out a philosophy which is expressed pretty much
In that 1971 Indiana Law Journal piece." (Conservative Digest
1985).
When asked whether he had "eaten" his Indiana Law Journal
article, he responded: "I've eaten the article one little
sentence." When asked which Is the sentence, he responded "I'll
never tell." (Federalist Society 1986)
"It's always embarrassing to alt here and say no, I haven't
changed anything, because I suppose one should always claim
growth. But the fact la no, my views have remained about what
they were. After all, courts are not that mysterious, and If you
deal with them enough and teach their opinions enough, you're
likely to know a great deal. So when you become a Judge, I don't
think your viewpoint Is likely to change greatly . . . Obviously,
when you're considering a man or woman for a Judicial
appointment, you would like to know what that man or woman
thinks, you look for a track record, and that means that you read
any articles they've written, any opinions they've written. That
part of the selection process la Inevitable, and there's no
reason to be upset about It." (District Lawyer 1985)
"Teaching is very much like being a Judge and you approach the
Constitution In the same way." (Pittsburgh Radio Interview 1986)
"My own philosophy Is lnterpretlvist. But I must say that this
puts me in a distinct minority among law professors. . . By my
count, there were in recent years perhaps five lnterpretlvists on
the faculties of the ten best-known law schools. And now the
President has put four of them on courts of appeals. That Is why
faculty members who don't like much else about Ronald Reagan
regard him as a great reformer of legal education." (National
Review 1982)
On the public accommodations and employment provisions of the Civil
Rights Act of 19bTi
"Thar* seems to be a strong disposition .on the part or proponents
of the legislation simply to Ignore the fact that It means a loss
in a vital area of personal liberty. That It does Is apparent.
The legislature would Inform a substantial body of the citizenry
that in order to continue to carry on the trades In which they
are established they must deal with and serve persons with whom
they do not wish to associate . . . The principle of such
legislation is . . . a principle of unsurpassed ugliness." (New
Republic 1963)
"There are serious and substantial difficulties connected with
the public accommodations and employment provisions. . . The
proposed public accommodations and employment practices laws,
however, would . . . compel association even where it Is not
desired." (Chicago Tribune 1961)
On the Supreme Court's decision In Kattenbach v. Morgan (1966),
sustaining a section of the Voting Rights Act or 19&5
~ barring"
rlr
fost in English, and Oregon v. Mitchell (19 ), sustaining
literacyr teats
a section of the Voting Rights Act of 1970 barring all literacy
tests:
"These decisions represent a very bad and, Indeed, pernicious
constitutional law." (Senate Judiciary Committee 1981)
372
- 3-
On the Supreme Court's deolslon In Shelley v. Kraemer (19**8),

striking down racially reatrlotlve covenants;
"Starting with an attempt to Justify Shelley on grounds of
neutral principles, the argument rather curiously arrives at a
position In which neutrality In the derivation, definition and
application of principle Is Impossible and the wrong Institution
Is governing society." , (Indiana Law Journal 1971)
On the Supreme Court's decision In Harper v. Virginia Board of
Elections {.I960). strlUlng down the poll tax;
"[T]hat case, an equal protection case, seemed to me wrongly
decided . . . As I recall, It was a very small poll tax. It was
not discriminatory and I doubt that It had much Impact on the
welfare of the Nation one way or the other." (Senate Judiciary
Committee 1973)
On the Supreme Court's deolslon In the Bakke Case (1978) upholding
affirmative action programs!
"Justice Powell's middle position universities may not use raw
racial quotas but may consider race among other factors. In the
Interest of diversity auong the student body has been praised as
a statesmanlike solution to an agonising problem. It may be.
Unfortunately, In constitutional terms, his argument Is not
ultimately persuasive . . . As politics the argument may seem
statesmanlike, but as constitutional argument, it leaves you
hungry an hour later." (Wall Street Journal 1978)
On the Supreme Court's decision In Reynolds v. Sims (1961), the
reapportlonment case establishing the one man, one vote standard for
election districts;
"On no reputable theory of constitutional adjudication was there
an excuse for the doctrine It Imposed." (Fortune Magazine 1968)
"The state legislative reapportlonment cases were unsatisfactory,
preolsely because the Court attempted to apply a substantive
equal protection approach. Chief Justice Warren's opinions In
this series of oases are remarkable for their Inability to muster
a single respectable supporting argument." (Indiana Law Journal
1971)
"I think one man, one vote was too much of a straight Jacket. I
do not think there Is a theoretical basis for it." (Senate
Judiciary Committee 1973)
"Z think this court stepped beyond Its allowable boundaries when
It Imposed one man, one vote under the Equal Protection Clause."
(United States Information Agency, June 10, 1987)
On the application of the Equal Protection Clause to women:
"The equal protection clause . . . does require that government
not discriminate along racial lines. But much more than that
cannot properly be read Into the clause . . . [C]ases of racial
discrimination aside. It Is always a mistake for the court to try
to construct substantive Individual rights under the due process
clause or the equal protection clause." (Indiana Law Journal
1971)
"This court winds up legislating In this area with . . . entirely
made-up constitutional rights. This is a process that Is going
on. It happens with the extension of the Equal Protection Clause
to groups that were never previously protected. When they begin
to protect groups that were historically not intended to be
protected by that clause, what they are doing Is picking out
groups which ourrent morality of a particular social class
regards as groups that should not have any disabilities laid upon
them." (Federalist Society 1982)
373
"It speaks volumes about the deterioration of the equal

protection ooncept that it is even possible today to take
seriously a challenge to the constitutionality of the male-only
draft." (Seventh Circuit 1981)
"I do think the Equal Protection Clause probably should have been
kept to things like race and ethnicity. When the Supreme Court
decided that having different drinking ages for young men and
young women violated the Equal Protection Clause, I thought that
. . . was to trivialize the Constitution and to spread it to
areas it did not address." (United States Information Agency,
June 10, 1987)
On sexual harassment;
"Perhaps some of the doctrinal difficulty in this area is due to
the awkwardness of classifying sexual advances as
'discrimination.1 Harassment is reprehensible, but Title VII was
passed to outlaw discriminatory behavior and not simply behavior
of whioh we strongly disapprove . . . [The court's] bizarre
result suggests that Congress was not thinking of Individual
harassment at all but of discrimination In conditions of
employment because of gender." (Vlnson v. Taylor 1985)
On the Supreme Court's early decisions on the right to privacy In
Meyer v. Nebraska (1922) (striking down a state law prohibiting
schools from teaching foreign languages) and Pierce v. Society of
Sisters (1925) (striking down an anti-Catholic law prohibiting
parents from sending their children to private schools):
"[These cases] were also wrongly decided . . . perhaps Pierce's
result could be reached on acceptable grounds, but there Is no
Justification for the Court's methods." (Indiana Law Journal
1971)
On the Supreme Court's decision in Skinner v. Oklahoma (1942)
striking down a law requiring sterilization of persons convicted of
robbery but not embezzlement;
"[The decision Is] Improper and as Intellectually empty as
Oriswold v. Connecticut." (Indiana Law Journal 1971)
On the Supreme Court's decision In Orlswold v. Connecticut, striking
down a state law making it a crime for a married couple to purchase
or use contraceptives;
"Orlswold, then, is an unprincipled decision, both In the way In
which it derives a new constitutional right and In the way It
defines that right, or rather fails to define It . . . Every
clash between a minority claiming freedom and a majority claiming
power to regulate Involves a choice between the gratifications of
the two groups . . . Compare the facts In Grlswold with a
hypothetical suit by an electric utility company and one of Its
customers to void a smoke pollution ordinance as
unconstitutional. The cases are Identical . . . Unless wo can
distinguish forms of gratification, the only course for a
principled court is to let the majority have its way In both
oases." (Indiana Law Journal 1971)
"The most dramatic examples of nonlnterpretlvl.st review In our

history are Lochner v. New York, Orlswold v. Connecticut, and Roe
v. Wade, which struck down, respectively, a law providing' maximum
hours of work for bakers, a law prohibiting the use of
contraceptives, and a law severely regulating abortions. In not
one of those cases could the result have been reached by
Interpretation of the Constitution, and these, of course, are
only a very small fraction of the cases about *htch that could be
said." (Catholic University 1982)
"I don't think there Is a supportable method of constitutional
reasoning underlying the flrlswold decision." (Conservative
Digest 1985)
374
_5 -
On the Supreme Court's decision In Roe v. Wade (1973), establishing a

constitutional right to abortion:
"I am convinced, as I think most legal scholars are, that Roe v.
Wade Is, Itself, an unconstitutional decision, a serious and
wholly unjustifiable Judicial usurpation of State legislative
authority . . . [It] Is In the mnnlng for perhaps the worst
example of constitutional reasoning I have ever read." (Senate
Judiciary Committee 1981)
"The public Is coming to understand that decisions like Roe v.
Wade rest on no constitutional foundation." (Seventh Circuit
T9BT)
On the right of a divorced father to visit his minor child:
"I cannot agree that the Constitution of Its own force
establishes any such right for a non-custodial parent . . . The
[Supreme] Court has never enunciated a substantive right to so
tenuous a relationship as visitation by a non-custodial parent.
The reason for protecting the family and the Institution of
marriage Is not merely that they are fundamental to our society
but that our entire tradition is to encourage, support, and
respect them . . . That ca'nnot be said of broken homes and
dissolved marriages. In fact to throw substantive and not simply
procedural constitutional protections around dissolved families
will likely have a tendency further to undermine the Institution
of the Intact marriage and may thus partially contradict the
rationale for what the Supreme Court has been doing in this
area." (Franz v. United States 1983)
On the scope of the First Amendment's protection of free speech:

"Constitutional protection should be accorded only to speech that
Is explicitly political. There is no basis Tor Judicial
Intervention to protect any other form of expression, be It
scientific, literary or that variety of expression we call
obscene or pornographic." (Indiana Law Journal 1971)
"But there Is no occasion . . . to throw constitutional
protection around forms of expression that do not directly feed
the democratic process. It Is sometimes said that works of art,
or Indeed any form of expression, are capable of influencing
political attitudes. But In these Indirect and relatively remote
relationships to the political process, verbal or visual
expression does not differ at all from other human activities,
such as sports or business, which are capable of affecting
political attitudes, but are not on that account immune from
regulation . . . I will be bold enough to suggest that any
version of the Plrst Amendment not built on the political speech
core, and confined by, If not to, it will either prove
Intellectually Incoherent or leave Judges free to legislate as
they will, both mortal sins In the law." (University of Michigan
1977)
"My views on the Plrst Amendment [in the 1971 article], I think,
have changed only to the extent that in an etTort to find a
bright line for Judges to follow, I aald the First Amendment
really ought to protect only explicitly political speech. It now
strikes me that I purchased a bright line at the expense of a
rather more sensible approach. There Is a lot of moral and
scientific speech which feeds directly Into the political process
. . . I cannot tell you much more than that there is a spectrum
of, I think political speech 3peech about public affairs and
public officials is the core of the amendment, but protection
Is going to spread out from there, as I say, In the moral speech
and in the scientific speech, into fiction and so forth. There
comes a point at which the speech no longer has any relation to
those processes. It Is purely a means for self-gratification.
When It reaches that level, speech is really no different from
any other human activity which produces self-gratification.
Where you draw the line there, I cannot state with great
precision." (United States Information Agency, June 10, 1987)
375
-6-
On freedom of the press:

"[It] seems plain that the press has done quite well before
the Burger Court. In Pentagon Papers the press was permitted
to publish state seorets It knew to have been taken from the
government without authorisation. In Miami Herald Publishing
Co. v. Tornlllo the Court struck down a rlght-or-repiy
statute that had significant scholarly support. In Cox
Broadcasting Corp. v. Cohn a statute prohibiting publication
of * rape victim's name~was held Invalid. In Landmark
Communication v. Virginia the State was held disabled from
punishing publication of material wrongfully divulged to it
about a secrut inquiry into alleged Judicial misconduct."
In some of those oases, It is possible to believe, the press

won more than perhaps it ought to have, though not many
Journalists are heard to express qualms. Surely, however.
Pentagon Papers need not have been stampeded through to
decision without either Court or counsel having time to learn
what was at stake. The New York Times which had delayed
publication for three months was able to convince the Court
that Its claims were so urgent, once it was ready to go, that
the Judicial process could not be given time to operate, even
on an expedited basis. And one may doubt that press freedom
requires permission to publish a rape victim's name or to
publish the details of an investigation which the State may
lawfully keep secret. These cases are Instances of extreme
deference to the press that Is by no means essential or even
important to its role." (University of Michigan 1977)
On freedom of religion:
"One of those who spoke at Brooklngs in response to Bork said
Bork essentially adopted Chief Justice William H. Rehnquist's
dissent in an Alabama school prayer case In 1985. In that
case, Rehnqulst said the Pounding Pathers Intended only to
ensure that one religious sect should not be Tavored over
another, not that the government should be entirely neutral
toward religion. Another member of the audience, the Rev.
Kenneth Dean, pastor of the First Baptist Church of
Rochester, N.Y., said he told Bork of his experience as a
Junior high school teacher in Florida where Bible reading
began every school day. Dean said he told Bork of one
occasion where he called upon a Jewish student to read from
the New Testament but the boy declined,-saying his parents
did not want him to. Those who refused to read had the
option of standing outside the classroom, he recalled. Dean
said he felt he had treated the student badly by singling him
out before his peers. Dean quoted Bork as responding, 'So
what? I'm sure he got over It.' Bork, asked about Dean's
account, said, 'I can't believe I would have said that.'"
(Washington Post, July 28, 1987, referring to a dinner at the
Brooklngs Institution for religious leaders in 1985)
On the Supreme Court's decisions In Brandenburg v. Ohio (1969)

and Hess v. Indiana (1973), establishing the clear and presenT
danger test before political speech can be prohibited:
"There should, therefore, be no constitutional protection for
any speech advocating the violation of law." (Indiana Law
Journal 197D
"Hess and Brandenburg are fundamentally wrong interpretations
of the Pirst Amendment." (University of Michigan 1977)
376
-7 -
On the Holmes and Brandels dissents In the Oltlow and Abrams

caaea, proposing the clear and present danger teat:
"Actually, In those famous decisions, I thought the majority -
I think It was Sanford, Justice Sanford -- had a rather
better logical argument than either Holmes or Brandeis. I
don't think the clear and present danger test was an adequate
test, no." (United States Information Agency, June 10, 1987)
On Congress and the antitrust law:
"Certain of the antitrust statutes, the Clayton Act and the
Roblnson-Patman Act, direct the courts' attention to specific
suspect business practices. Though these practices are
almost entirely beneficial, Congress has Indicated lta belief
that they may not always, but under circumstances
deliberately left undefined Injure competition. Is a
court that understands the economic theory free, In the face
of such a legislative declaration, to reply that, for
example, no vertical merger ever harms competition? The
Issue Is not free from doubt, but I think the better answer
Is yes." (The Antitrust Paradox, p. 109-110, 1978)
"It was, perhaps, never to be expected that Congress would

create the details of a rational antitrust policy. As a
body. It Is capable of deciding questions that require a yes
or no, of adopting correct broad general principles, or of
writing codes reflecting detailed compromises; but whatever
the merits of Individual members, Congress as a whole Is
Institutionally Incapable or the sustained, rigorous and
consistent thought that the fashioning of rational antitrust
policy requires." (The Antitrust Paradox, p. H12, 1978)
"[I]f everything said by the proponents of multiple goals, of

political goals, of the antitrust laws, If all of that were
true, It would not matter . . . If Congressmen explicitly
said they wanted courts to weigh political values against the
economic welfare of consumers, It would not matter. (Bar
Association of the City of New York 1986)
On horizontal mergers:
"[W]e are In an area of uncertainty when we a3k whether
mergers that would concentrate a market to only two firms of
roughly equal size should be prohibited. My guess la that
they should not and, therefore, that mergers up to 60 or.70
percent of the market should be permitted. . . . Partly as a
tactical concession to current oligopoly phobia and partly In
recognition of Section 7's Intended function of tightening
the Sherman Act rule, I am willing to weaken that
conclusion. Competition In the sense or consumer welfare
would be adequately protected and the mandate or Section 7
satisfactorily served If the 3tatute were Interpreted as
making presumptively lawful all horizontal mergers up to
market shares that would allow for other mergers of similar
size In the Industry and still leave three significant
companies. In a fragmented market, this would Indicate a
maximum share attainable by merger of about '40 percent."
(The Antitrust Paradox, pp. 221-222, 1978)
On vertical mergers:
"These observations Indicate that [vjertical mergers are

merely one means of creating a valuable form or integration
and that there Is no reason Tor the law to oppose such
mergers." (The Antitrust Paradox, p. 231, 1978)
377
on vertical Price restraint (resale price maintenance):

Analysis shows that every vertical restraint should be
completely lawful." (The Antitrust Paradox, p. 288, 1978)
"There Is never a price discrimination that injures
competition . . . If the legislators tell a Judge what to do,
of course he has to do It, no matter what his personal
views. But the Robinson-Patman Act does not do that. There
la a theory that Congress did not mean what it said In the
Robinson-Patman Act; that It said protect competition but
rsally meant protect small business. That is the theory that
Congress winked at when It enacted the statute. I do not
think it is a Judge's business to enforce a legislative
wink." (Conference Board 1983)
On conglomerate mergers;
"It seems quite clear that antitrust should never Interfere
with any conglomerate merger. Like the vertical merger, the
conglomerate merger does not put together rivals, and so does
not oreate or Increase the ability to restrict output through
an Increase In market share, whatever their other virtues or
sine, conglomerates do not threaten competition, and they may
contribute valuable efficiencies." (The Antitrust Paradox,
p. 248, 1978)
On the standing of members of Congress to bring actions In

7eTeral courts to challenge unconstitutional acltons by the
President: ~
"We ought to renounce outright the whole notion of
Congressional standing . . . [Wjhen federal courts approach
the brink of general supervision of the government, as they
do here, the eventual outcome may be even more calamitous
than the loss of Judicial protection of our liberties."
(Barnes v. Kline 1985)
On restrictions by Congress on the CIA;
"A substantive charter that says what will be prohibited and
what will be allowed . . . would seem to be a congressional
attempt to control the President's power In this respect. It
verges upon unconstitutionally, and may well be
unconstitutional, because the president has broad powers, as
oommander-ln-chlef and as tho executive who conducts our
foreign relations in this area." (American Enterprise
Institute 1979)
"[A charter Is] not merely unworkable. I think such a code

la indeed unconstitutional." (ABA Workshop 1979)
On the Foreign Intelligence Surveillance Act (1978), requiring
court-ordered warrants for wiretapping and electronic
surveillance of American citizens in the course of national
security Investigations! '
"I believe that the plan of bringing the Judiciary, a warrant
requirement, and. a orlminal violation standard into the field
of foreign intelligence Is, when analysed, a thoroughly bad
1-dea, and almost certainly unconstitutional as well . . .
[Tjhe law Is vtry probably a violation of both Articles II
and III of the Constitution." (House Judiciary Committee
1978)
On the invasion of Cambodia:
"President Nixon had ample Constitutional authority to order
the attack upon the sanctuaries In Cambodia seized by North
Vietnamese and Viet Cong forced . . . The real question In
this situation is whether Congress has the Constitutional
378
-9-
autborlty to limit the President's discretion with respect to

this attack. Any detailed Intervention by Congress In the
conduct of the Vietnamese conflict constitutes a trepass upon
powers the Constitution reposes exclusively In the
President." (American Journal of International Law 1971)
On the War Powers Resolution:
"As expiation for Vietnam, we have the War Powers Resolution,

an attempt by Congress to share In detailed decisions about
the deployment of U.S. armed forces In the world. It Is
probably unconstitutional and certainly unworkable. But
politically the resolution severely handicaps the President
In responding, to rapidly developing threats to our national
Interests abroad." (Wall Street Journal 1978)
On Watergate and the firing of Archibald Cox:
"There was a lawsuit about whether the charter should have

been revoked on Saturday night before he was fired, and
whether therefore the firing was Illegal under the charter
until It was revoked. I regard that as an argument about a
36-hour period. The reason the charter wa3 not revoked
before he was fired was that there was no stafr around to do
the necessary work. Monday morning the charter was revoked."
"I do not think that Issue of which order It should have come
In and whether the thing was Illegal for 36 hours Is
Important."
"[T]here was never any possibility that that (Hacharge of the

Special Prosecutor would In any way hamper the Investigation
or the prosecutions of the Special Prosecutor's office."
"The next day after the discharge there was a meeting in my

office on Sunday. I brought In Henry Peterson, who was then
the head of the Criminal Division of the Department of
Justice, and I brought In Mr. Cox's two deputies, Henry Ruth
and Phillip Lacovara. At that meeting I told them that I
wanted them to continue as before with their Investigations
> and with their prosecutions, that they would have complete
Independence, and that I would guard that Independence,
Including their right to go to court to get the White House
tapes or any other evidence they wanted. Therefore, I
authorized them to do precisely what they had been doing
under Mr. Cox." (Senate Judiciary Committee 1982)
On court-appointed special prosecutors:
"The question Is whether congressional legislation appointing

a Special Prosecutor outside the executive branch or
empowering courts to do so would be constitutionally valid
and whether It would provide significant advantages that make
It worth taking a constitutionally risky course. I am
persuaded that such a course would almost certainly not be
valid and would, In any event, pose wore problems than It
would solve." (House Judiciary Committee 1973)
On campaign financing reform:
"We have, as atonement for Illegalities In fjnd raising In

the 1972 campaign, the Pederal Election Campaign Act, which
limits political expression and deforms the political
process. The Supreme Court held that parts or this act
violate the First A m e m e n t and probably should have held that
all of It does." (Wall Street .Journal 1978)
379
The CHAIRMAN. Would you like to say anything?
Judge BORK. No. I would just like to have a copy of the state-
ments.
The CHAIRMAN. Without objection. It is 10 after 1:00. I think we
should recess until 2:30.
Senator LEAHY. What generally will be the program the rest of
the day? I know we are going to have votes, too, on the floor.
The CHAIRMAN. In a moment we will recess until 2:30 and we
will finish today with a second round of every Senator who wishes
to have a second round, and we will make a judgment as we go.
We will recess until 2:30.
[Whereupon, at 1:10 p.m., the committee recessed to reconvene at
2:30 p.m. the same day.]
AFTERNOON SESSION

Judge, I apologize for these constant interruptions with the
votes. I am sorry. It does not happen this way in the circuit court,
does it? You guys, and women, can call it when you want it, but we
cannot.
Our next questioner is Senator Simpson. Senator Simpson.
Senator SIMPSON. Well, Mr. Chairman, here I was here on time.
No one was here.
The CHAIRMAN. I want you to know, Senator Simpson, I was here
at 2:30 before you walked in, but you were smart enough to vote
first, and then come.
Senator SIMPSON. Oh, I did not. [Laughter.]
The CHAIRMAN. Or did you miss that vote?
Senator SIMPSON. I sure as hell have not.
The CHAIRMAN. Oh, you have not voted?
Senator SIMPSON. I came from outside the building, walking,
gathering my thoughts. You are going to have to carry on, Mr.
Chairman, all by yourself.
The CHAIRMAN. Okay. Well, Judge
[Laughter.]
The CHAIRMAN. Judge, I have a number of questions, but I do not
think it is appropriate for me to start, again, since my colleagues
arewe are going to do this in some order. But let's you and I talk
for just a minute about the schedule here.
I would like very much to not keep you long today. I know you
are willing to stay as long as we want, but I just think it is unfair
to keep you on well into the evening tonight. But I would like very
much to try to finish up tomorrow.
Judge BORK. I share your attitude, Mr. Chairman.
The CHAIRMAN. And I suspect that you might also. So what we
will try to do today isas we get Senator Simpson back hereis
try to get three, maybe four more people. The problem I have is
that Mr. Shevardnadze is here and is going to brief all Senators,
and obviously that is an important matter.
I am not sure, until my colleagues get back, what their wish will
be, whether to continue with a questioner while Shevardnadze is
here. We will make that judgment when they get back.
380
But if we went with four more people today, that would leave
four for a second round tomorrow, and you do not have to answer
now, but I would like you to consider maybe starting a little earlier
tomorrow morning, maybe start at 9:30, 9:00 o'clock even, I do not
know.
Judge BORK. Mr. Chairman, if there is a chance of finishing to-
morrow, I would be glad to start at 9:00 o'clock, 9:30.
The CHAIRMAN. It is my strong desire to finish tomorrow. As the
witnesses, all witnesses havewe have had them changing their
schedule, and it is my intention now to begin Monday morning
with the first witness being the American Bar Association.
Again, it will depend on how long we go here. But as your staff
can tell you, when I queried the Senators, those who are strongly
for you, and those who are who are not, all of them said they
wanted to ask more questions.
So I am not sure that might not dissipate after this second round
is over, but I will try not to keep you beyond 5:30 today and it may
be we break as early as 4:30. But is that agreeable with you?
Judge BORK. That is very agreeable, Senator.
The CHAIRMAN. What we will do is, rather than you and I, or me
carrying on this travelogue here, we will recess until Senator Simp-
son gets back, and he is a Wyoming cowboy, he has long strides
and he ought to be back here, shortly.
So we will recess to the call of the Chair, which I expect will be
about 5 to 7 minutes.
[Recess.]
Senator Simpson.
Senator SIMPSON. Well, Mr. Chairman, I now know where every-
body was, and although I did not hear the bell, at least I saw the
light, later, after nearly too late, and so I thank you.
Well, I must say before I begin my remarks, that I at least think
this is appropriate for me. I want to say, right now, that our Chair-
man has been ultimately fair, not only in these hearings, but in ev-
erything I have done with him in my 9 years in the U.S. Senate.
He is very able, very candid, very accommodating, very helpful,
and very courteous to me, as a member of the majority, or the mi-
nority.
I do not know where all this stuff will go with regard to your
present situation. Hang on tight. You have at least had the guts to
throw yourself in the public arena to run for the presidency, and
that is better than a lot of faint-hearted detractors will ever do in
this world, and they will be the ones who will be trying to sully
you, and pull you down, and so, more power to you as you grapple
with that one.
Senator SIMPSON. NOW I was interested this morning by members
of the panel discussing things with Judge Bork. I still am puzzled
how we can rag around that one on the decision, the Court decision
on Watergate, when it was vacated, and I do not know how much
more you could really milk that one.
A vacated court decision is just thatnull, void, repealed, out the
window, gone. And that is what was proven to be so. And then I
really do not know how, really, we can blame every social ill upon
381
you that has befallen our country in these last years, and I think
that that is easily perceived for what it is.
I personally want to tell you, I do not think you were responsible
for the Vietnam War. I want to tell you that, and I feel that
deeply.
Or every failure of the marketplace. Capitalism's little ups and
downs, I am not going to lay at your feet.
So, I think we should kind of keep our eye on the rabbit here,
that we are trying to confirm a Supreme Court Justice, and we are
doing that, and very seriously so, and I say that on behalf of all of
us.
It has been very interesting to me to hear some rather stirring
discussions, very academic discussions from various members of the
panel.
It is as much of a revelation as almost being back in law school,
and hearing the debate of the sharpest kid in the class with the
sharpest professor in the class, and I say that on behalf of my col-
leagues, because on both sides of the aisle, these are some superb
lawyers.
So that has been interesting. Some of it has been rather arcane, I
might add, I have thought. It is not really going to replace anyone's
diet of viewing fare, in my mind, but the American people are
hearing and listening, and judging, judging you on how you handle
the questions, some very pungent, some very absurd, some very ap-
propriate, some very inappropriate.
What has kind of been interesting to me is how we are judging
things you did by how we feel in America now, and not how people
felt about America then, and that is so easy to do.
These are different times than they were in 1964, at the time of
the Civil Rights Act. Different times than when the debate went on
in the Senate.
And the ultimate of different times has been mentioned here two
or three timesthe extraordinary situation of the removal of the
Japanese-Americans to camps in the United States. That has been
mentioned here several times.
Today, the House will pass that bill. I am a co-sponsor of that
bill, and even though the intimacy of the camp has never been a
part of my background, the intimacy of living next to it was, in
Cody, Wyoming. One of the largest camps was Heart Mountain re-
location center. I was a young man, a boy scout, and went out to
visit the boy scout troop with the camp and behind wire were boy
scouts, which was rather puzzling to me, who were American citi-
zens, who wore the same scout uniform, had the same merit
badges, told the same stories, rich tapestry of stories.
That is where I met Norm Mineta first. He was behind the wire
there at Heart Mountain. That was a different time, and that was
done by a man who spent a lifetime atoning for it. Earl Warren.
He signed the order. He was attorney general of California. And
then the Warren Court became the most progressive in the land.
I cannot help but think that that was a goad to him in his years
on the bench. Anyway, it happened, and the Supreme Court of the
United States embraced it, and I believe you referred to it as one of
the most shockingI cannot recallanyway, you said that was an
extraordinary decision, appalling decision. But nevertheless, it was
382
a decision of the U.S. Supreme Court, and that I think is indicative
of the fact that we were at war, and things were happening off our
coast. We were told that there were submarines out there sending
signals to people on shore who were going to do things to us in
America.
You see, all of that escapes us in this process. The full scope of it
is not there. And yet, as I say, I am a co-sponsor of that bill. We
have things to do, and we will do them. But it is a sensitive issue.
It was a sensitive issue in my hometown, because, you know, on the
door it would say, "My son has been killed." And then other people
would say "we want to open our hearts to these American citi-
zens." It was a very confusing thing for this kid, at the age of thir-
teen.
But the civil rights legislation. You know, your writings on the
civil rights legislation were not one whit different than some of Bill
Fulbright's, Sam Ervin's, John Sparkmanvice presidential candi-
date of the United States of America on the Democratic ticket
saying the same things you were. The same about, you know, this
is puzzling, you own a private establishment, are you not able to
judge who you will allow in it? We are not talking about race. Ev-
erybody says "ah, you are, don't give us that."
So it was interesting, to me, to go back and look at the record of
the voting, and especially an amendment from a man that all of us
in the Senate refer to as Mr. Constitution. Sam Ervin. A marvelous
man. It was my pleasure to know him during his lifetime, and to
share a few rich stories with him. That was a delight.
He had an amendment to the civil rights legislation which pro-
vided that nothing in the title should be construed as requiring any
person to render any personal service to another against his will.
Pretty heavy stuff. Twenty-one people voted for that in the U.S.
Senate. Some are here.
Sam Ervin had another one about covered establishments. He
got 19 votes on that one. Sparkman had an amendment to exempt
from coverage eating establishments located within the residence
of the owner or proprietor. That was the vice presidential candi-
date of the United States, I am speaking of. Twenty-five voted for
that one.
That is called reality, I think. And not one of these people who
were involved, and who sit with us presently in our midst, are any
lesser people for anything they did on this.
So what is the test on you, that makes this so impossible as an
argument, when here we have men who voted on that issue? All
you did was write on it, and a lot of people wrote on it. Democrats,
Republicans, conservatives and liberals wrote on it in 1963. Nobody
would be writing on it today, but we are not talking about today.
That is just the way it is.
Then, of course, I went back and looked at what you have talked
about the Bakke case, and you get flack of all kinds on that. I have
heard that rattling off the walls here, about what you did on af-
firmative action, and it is an extraordinary attack on you that
seems continual in its drum fire about civil rights. You handled
that beautifully.
I do not know what more you can do. I mean, while they have
been talking, you have been voting with your decisions.
383
I was interested in the quote from the Congressional Record in
1964 of the Senate debate. This quote.
Contrary to the allegations of some opponents of this title, there is nothing in it
that would give any power to the commission, or to any other court to require
hiring, firing, or promotion of employees in order to meet a racial quota, or to
achieve a certain racial balance.
Title VTI is designed to encourage hiring on the basis of ability, and qualifications,
not race nor religion. That bugaboo has been brought up a dozen times. It is non-
existent.
That was Hubert Humphrey that said that. Hubert Humphrey
said that about that bill. And then he said, too, is simply what the
bill doesas was pointed out so earlier todayis simply to make it
illegal, an illegal practice to use race as a factor of denying employ-
ment.
It provides that men and women shall be employed "on the basis
of their qualifications, not as Catholic citizens, not as Protestant
citizens, not as Jewish citizens, not as colored citizens"the use of
that term offensive in itself these days"but only as citizens of the
United States."
Thenand I am quoting again from Hubert Humphrey
nothing in the bill or in the amendments requires racial quotas. The bill does not
provide that people shall be hired on the basis of being Polish or Scandinavian, or
German, or Negroanother phrase that is not used in the vernacular of our day
or members of a particular religious faith.
It provides that employers shall seek and recruit employees on the basis of their
talents, their merit, and their qualifications for the job. The employer, not the Gov-
ernment, will establish the standards.
Those are quotations of Hubert Humphrey in the 1964 debate of
the Civil Rights law. So I think, you know, really, I do not think we
really have to muck around in that much more.
I am sure you have thought a lot about the Indiana Law Journal
article. It comes to you in the night, doesn't it? I do not think any-
body has ever quoted from the first two paragraphs of it, and I
think that is disturbing. Because what you said there, in this arti-
cle, in the Indiana Law journalit said:
A persistently disturbing aspect of constitutional law is its lack of theory, a lack
which is manifest not only in the work of the courts but in the public.
And then you go on to sayand I never heard anybody bring
this up. "The remarks that follow do not, of course, offer a general
theory of constitutional law. They are more properly viewed as
ranging shots"you have had a few ranging shots back on the arti-
cle, and I am sure that is probably why you wrote it, after getting
to know you.
"They are more properly viewed as ranging shots, an attempt to
establish the necessity for theory, and to take the argument of how
constitutional doctrine should be evolved by courts a step or two
further." That is what you said.
Nobody has brought that up. And then you saidand this is all
on the first page. I have heard page 18 quoted, page 22 quoted,
page 30, but I have never heard anything on the first and last
page, which it seems to me that most people would get the flavor of
a literary piece, or a law review article.
And you went on to say, quote:
384
The style is informal since these remarks were originally lectures, and I have not
thought it worthwhile to convert these speculations and arguments into a heavily
researched, balanced, and thorough presentation, for that would result in a book.
Unquote.
And then it goes on to say that the article was delivered in the
spring of 1971 by Professor Bork as part of the Addison C. Harris
lecture series at the University of Indiana School of Law.
At the end of the article you made another statement. One sen-
tence. "These remarks are intended to be tentative and exp-lorato-
ry."
Now, I do not think we can work the rubric of the ages around
that kind of thing. It is a good provocative piece. You found that
out.
Did you ever stop to thinkat least it came to methat you
know what could be really chilling in this country, especially for
candidates for the judiciary, or young lawyers, or judges, or law
review editors flapping their wings? You know what could really be
chilling? If people dug our articles like this 20 or 30 years after you
had done them, or ten, and said, "Look at this." That is what they
are doing with it, nothing more.
I cannot imagine anything more chilling on the flow of free
thought and theorizing, and ideas, than to pick up an article which
is just that, and described as that, and hang it around your neck
like a layaliere for the rest of your life.
That is really bizarre, in my mind. So, as we talk about "chill-
ing"I love that phraseit depends on where it hurts, and every-
thing is chillingchilling this and chilling that. Well, that is a
pretty good chiller, right there, on some young man who is going to
be asked to do a law review article and make it provocative.
That is what happened to Pat Wald. She was asked to do a pro-
vocative article on the rights of a child and the family relationship,
a child of 12 or 13, and it was a remarkable piece. Well, I tell you:
that remarkable lady took the slings and arrows of outrageous for-
tune on that one.
And so I just wanted to comment on some of those things. Those
things means something to me because they are topical. You could
talk about the right to privacy, and then for me to learn that it
was a law professor's exercise on that contraception case in Con-
necticut; nothing had ever been brought about it, and then they fi-
nally nailed the doctor who was selling such devices, and it went to
the Supreme Court. It did not look like that to me when I was
practicing law in Cody, Wyoming. I thought it was pretty heavy
stuff. But now I see it was kind of a pedantic exercise, kind of
something to stretch the wings of professors, or something. And
often, I have found in my life that professors sometimes blur the
line between divinity and tenure. And that is one of the charges
against you.
How do you feel about that one? You know, they think Judge
Bork is arrogant. That has been said. How do you respond to that?
Judge BORK. Senator, I never have thought of a way to respond
to that, except to say "I do not understand why you say that."
Senator SIMPSON. Why not? Obviously
Judge BORK. NO. I am not speaking to you, Senator. No. I do not
know how to disprove a statement like that. People have argued
385
with me, and when they were rightI think the most important
thing is to follow your mind and your logic and the evidence where
it goes. And sometimes, people argue with you, and you change
your mind. I do not know if that is arrogance or not.
Senator SIMPSON. Well, certainly, anyone who has listened to you
in these last 2 days has no fault with your mind or your articulate
ability and your intelligence. That is extraordinary, and that is
very obvious.
But again, those are interesting things as we get into all the stuff
of cases and case law and who did this to what, and what the
meaning was of the non-unanimous decision written in 1981 or
1982; it is just kind of unique. And then the right to privacyand I
do not know much more to develop on that. I think, hopefully, that
has been developed.
As to that case and what you said, I was just interestedyou
talk about the right to privacy in topical termsI was startled at a
very small clipping, which I have never heard anybody comment
on yet, and I throw it out and will move on to my questions.
It was in a kind of a gossip column of one of the local papers in
July, during the time of the Oliver North hearing. It was written
in a flippant style, and it said something about Oliver North, after
long days before the Iran-Contra Committee, can apparently come
home now to tapes of this performance. Get this, "No one knows
for sure if he is taping all those hours for posterity, but he did buy
a VCR last New Years Eve, from Erol's, in Sterling Park, Virginia,
and just 3 weeks ago had a repair technician in to see that the ma-
chine was in proper working order." "Interestingly"I am quot-
ing"Erol's has no record in its computers that North or his wife
is a member of the video rental club, or that he has ever rented a
movie there. And to think of all those John Wayne movies he could
be watching."
You know, that is funnybut that ain't funny at all.
We talk about the right to privacy. Well, I do not know how
many in this room would like to have the newspaper go and check
through Erol's or Freddy's Video, and find out what they are
checking out down there when you go to get the tape, and you tell
them you got one on bird-watching, and it is about a red-headed,
double-breasted mattress-thrasher. [Laughter.]
So, if we really are talking about privacy in September of 1987,
we ought to be paying a lot more attention to that little item in the
newspaper than anything in the case of Griswold. That is my
humble and earnestly-held opinion.
God, I have been waiting a long time to drop that one. But
really, that is very perplexing. I do not know how it is for the rest
of my fellow lawyers, but it is so for this lawyer. That is one of the
most offensive things I can imagine, to know that a reporter can
get to go down and go through your videotape rental records, wher-
ever you are in the United States, and not pretend that is not a
most offensive kind of conduct.
And I have often said if there had been four FBI agents hanging
out in that house, watching Gary Hart, we would be reading about
it yet. But they were not; they were members of the fourth estate.
So you know, there is an arrogance all around here, I think. And
then, just to be terribly topical, this morning, I see that the gentle-
386
man who said that you were an agnosticwhere is that lovely
little thinghe said
Judge BORK. He is a friend of mine, Senator.
Senator SIMPSON. 1 know, I know; that is not the issue. I have
got lots of friends who do me in; it is my enemies I have got to
watch. [Laughter.]
You said that he used that wordnobody else had used that
wordinteresting, how interestingand then he said, "I am com-
fortable with that." I do not know the gentleman, but I think that
is a kind of arrogance.
We do it; I do it; you do it; they do it. So you know, it is the judg-
ing that always galls me, the judging of our colleagues by usually
those who are not usually untainted.
Oh, the hell with it. That is enough. I have got some questions.
Let me ask you about the death penaltyand I have not heard
that come up.
How much time do I have, Joe?
Senator GRASSLEY. I asked him about the death penalty.
Senator SIMPSON. Yes. I just want to ask one other thing about
that.
I do not know if you put it on a constitutional basis, legality of
the death penalty and the constitutional basis. Where do you find
that in the Constitution? And maybe you answered Chuck Grass-
ley, but I did not hear it.
Judge BORK. Well, yes, we discussed it, I think.
Senator SIMPSON. Did you? Okay.
Judge BORK. I argued as Solicitor GeneralI argued, made an
oral argument, and filed briefs as amicus for the United States, in
the case that brought the death penalty back after Furman v. Geor-
gia. And what you find in the Constitution is not only no prohibi-
tion of the death penalty, but you find repeated statements in the
Constitution that the framers assumed the availability of the death
penalty.
For example, the fifth amendment"No person shall be held to
answer for a capital crime, unless on presentment for indictment of
a grand jury." Well, a capital crime is the death penalty.
"Nor shall any person be subject for the same offense to be twice
put in jeopardy of life or limb." If you are put in jeopardy of life,
that is the death penalty.
"Nor shall any person be deprived of life, liberty, or property
without due process of law." Well, being deprived of life is the
death penalty. So the framers tell you that you have to have due
process of law, but you can impose the death penalty.
The 14th amendment in 1868: "No State shall deprive any person
of life, liberty, or property without due process of law." That is the
death penalty again.
I think there is one more reference in the Constitution to the
death penalty, Senator, but there are four, right there, that assume
the availability of the death penalty so far as the Constitution is
concerned.
Senator SIMPSON. Let me ask you another question. It was so in-
teresting to me, especially in the advertising that swirls around
Americaand I have not found anybody yet who wants to take re-
sponsibility for it; I have talked to some groups who I thought were
387
doing it, and they said, "Oh, we are not responsible for that"so I
have not found anybody yet, because it is offensive, and they have
all figured that out. But it is interesting how they stick the word
"poll tax" out there as if it were, quote, "racisim"because that is
all they have done. And "poll tax" to the layman out there is
racist.
But I think it is important to know that that is not what that
case had anything to do with at all; isn't that correct?
Judge BORK. That is correct. There was no allegation of racial
discrimination of any kind in that case.
Senator SIMPSON. Not one. And if there had been, what would
you have done?
Judge BORK. If there had been an allegation, and it was proved,
the poll tax would be unconstitutional under the equal protection
clause of the 14th amendment.
Senator SIMPSON. Let me ask youI listened this morning as
Senator Metzenbaum reviewed antitrust, and that was a law school
seminar for me, because Senator Metzenbaum is our pro on anti-
trust on this panel, and I know that with your book, the book you
wrote on the antitrust paradox, is really probably one of the most
respected volumes in that field. And I would like toin fact, my
good friend from Ohio, as I say, who I always take to conference
committees with me, at least when I was in the majorityI hope
he will take me with him on a few now that I am in the minority
he said, "I am familiar with your views with respect to antitrust
legislation, antitrust enforcement, and you and I are totally in dis-
agreement on that subject." And that is Howard Metzenbaum; he
lets you know where he is coming from.
Then he said, "However, as I said at the time Justice O'Connor
was up for confirmation"this was on her"the fact that my
views might differ from hers on any one of a number of different
issues would not in any way affect my judgment as pertains to con-
firmation or failure to confirm a member of the Judiciary." Others
have made those statements, and I think that they are important,
and they are known.
But I think that I want to enter into the record, Mr. Chairman, a
letter from the law firm of Shearman & Sterling of New York
Judge BORK. Senator, I know which letter, because I have a copy
of it. It is not from the law firm of Shearman & Sterling. It is from
a particular member of that firm, and it states the views of 17 past
chairmen of the ABA committee on antitrust. But I do not want to
get the law firm involved in this.
Senator SIMPSON. NO; all right. I agree with that.
The CHAIRMAN. Without objection, the letter will be placed in
the record.
[Letter of Mr. James T. Halverson follows:]
388
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Mr. Benjamin C. Bradlee

Executive Editor
The Washington Post
1150 15th Street, N.W.
Dear Sir:
I am Immediate Past Chairman of the Section of
Antitrust Law of the American Bar Association. I write this
letter on behalf of myself and the previous Chairmen of the
Section listed below.* We write to take issue with Colman
McCarthy's criticisms in his article of July 12, 1987 stating
that Judge Robert Bork's views on antitrust law are "over the
edge" and anticonsumer.
To the contrary, Judge Bork's writings in this area
have been among the most influential scholarship ever
produced. While not all of us would subscribe to its every
conclusion, we strongly believe that The Antitrust Paradox,
which he published in 1978, is among the most important works
written in this field in the past 25 years.
It is indicative of the value of Judge Bork's
contributions that The Antitrust Paradox has been referred to
by the United States Supreme Court and by the U.S. Circuit
Courts of Appeals in 75 decisions since its publication.
* The opinions expressed herein are those of the individuals

listed below and are not intended to represent those of the
Section of Antitrust Law or the American Bar Association.
389
Perhaps the clearest evidence of its influence is that it has

been cited approvingly by no fewer than six majority opinions
written by Justices commonly viewed as having widely varied
judicial philosophies: by Justice Brennan in Caroill v.
Monfort of Colorado. Inc.. 107 S.Ct. 484, 495 n. 17 (1986);
by Justice Powell in Matsushita Electrical Industries v.
Zenith Radio Co.. 106 S.Ct. 1348, 1357 (1986); by Justice
Stevens in Aspen Skiing Co. v. Aspen Highlands Skiing Corp..
105 S.Ct. 2847, 2858 and n. 29, 31, 2860-61 n. 39 (1985) and
NCAA v. Board of Regents. 468 U.S. 85, 101 (1984); and by
former Chief Justice Burger in Reiter v. Sonotone Corp.. 442
U.S. 330, 343 (1978) and United States v. United States
Gypsum Co.. 438 U.S. 422, 442 (1978). Justice O'Connor also
relied on The Antitrust Paradox in her concurring opinion in
Jefferson Parish Hospital District No. 2 v. Hyde. 466 U.S. 2,
36 (1984), as did Justice Blackmun in his dissent in Hatioqal
Society of Professional Engineers v. United States. 435 U.S.
679, 700 n. (1978). It should also be noted that every
member of the present Supreme Court joined one or another of
these opinions.
In light of the fact that six of the nine present

Justices have cited Judge Bork's book and that all of them
have joined opinions citing it, Mr. McCarthy's claim that
Judge Bork's antitrust views are "so far on the fringes of
irrelevant extremism that [Bork] disqualifies himself from
the debate" demonstrates more clearly than anything we could
say that Mr. McCarthy does not know what he is talking about.
Mr. McCarthy is also quite wrong in his suggestion

that Judge Bork's antitrust writings are anticonsumer. To
the contrary, the central thesis of Judge Bork's book, as
summarized in chapter 2, is that:
(1) The only legitimate goal of American antitrust law

is the maximization of consumer welfare; therefore,
(2) "Competition", for purposes of antitrust analysis,
must be understood as a term of art signifying any
state of affairs in which consumer welfare cannot be
increased by judicial decree.
R. Bork, The Antitrust Paradox 51 (1978).

It is true that Judge Bork has also stressed that
protection of consumer welfare is sometimes inconsistent with
protection of some businesses from legitimate competition.
The key point, here, however, is that Judge Bork advocates
pro-competitive policies which promote the very efficiency
that makes the enhancement of consumer welfare possible.
390
Thus, we fear that it is Mr. McCarthy, and not Judge

Bork, who is out of touch with the center of legitimate judicial
and economic thought about the proper direction of antitrust
analysis. Fortunately, the mainstream view, which no one has
helped promote more than Judge Bork, is that the proper antitrust
policy is one which encourages strong private and government
action to promote consumer welfare rather than unnecessary
government intervention to protect politically favored
competitors.
^Sincerely,
Allen C. -Holmes James T. Halverson

Cleveland, Ohio Shearman & Sterling
Section Chairman, 1978-79 New York, New York
Immediate Past Chairman
Ira M. Millstein Section of Antitrust Law
Weil, Gotshal & Manges
New York, Hew York American Bar Association
Section Chairman, 1977-78
On behalf of himself and:
Edwin S. Rockefeller
Schiff Hardin & Haite Richard A. Whiting
Washington, D.C. Steptoe & Johnson
Washington, D.C.
Section Chairman, 1976-77 Section Chairman, 1984-85
John Izard Richard W. Pogue
King & Spaulding Jones, Day, Reavis & Pogue
Atlanta, Georgia Cleveland, Ohio
Julian 0. von Kalinowski Carla A. Hills
Gibson, Dunn & Crutcher Weil, Gotshal & Manges
Los Angeles, California Washington, D.C.
Richard K. Decker E. William Barnett
Of Counsel Baker & Botts
Lord, Bissel & Brook Houston, Texas
Chicago, Illinois Section Chairman, 1981-82
Harvey M. Applebaum
Frederick M. Rowe Covington S> Burling
Kirkland & Ellis Washington, D.C.
Washington, D.C. Section Chairman, 1980-81
Earl E. Pollack
Miles W. Kirkpatrick Sonnenschein, Carlin,
Morgan, Lewis & Bockius Nath & Rosenthal
Washington, D.C. Chicago, Illinois
391
Senator SIMPSON. SO it is from the individual member of the
firm, a Mr. James T. Halverson of the firm. He is a past chairman
of the section of antitrust law, and he is commenting upon an arti-
cle by Colman McCarthy, which was rather strident, on July 12th
of 1987, stating that your views on antitrust law were, quote, "over
the edge," unquote, and anti-consumer.
He writes on his behalf and on behalf of all of the previous chair-
men of the sectionand I think there were 15who take issue
with that and state that your book is among the most important
works written in this field in the past 25 years; referred to by the
U.S. Supreme Court and by the U.S. Court of Appeals in 75 deci-
sions since its publication; six of the nine present Justices have
cited Judge Bork's work, and that all of them have joined opinions
citing it.
I think that is what we want to get into the record from people
who are totally knowledgeable in the field, and they say that Mr.
McCarthy is also quite wrong in his suggestion that your leaning,
writings, are anti-consumer.
So I would like that entered into the record, and I think that is a
very important thing for people to knowthe full statement.
The CHAIRMAN. The full statement has been put in the record.
Senator SIMPSON. Yes, the entire letter, please, Mr. Chairman.
Well, I see I have 2 minutes, so Mr. Chairman, I might respect-
fully requestI do not know what your scheduling isbut that we
might have another round. I think there are several of us who
would likeand I went too long, admittedly soit will not be me; I
will be asking questions, I promise. But I think it would be good to
maybe, hopefully, do that. We could limit the time, perhaps, but I
am in my last minute now, and I do have some other question I
would have liked to have asked with regard to the Vice President
Agnew situation, where the judge made a determination with the
Vice President which was different from the one he made with the
President, and it has an explanationa little bit more on that
and a little review of the list. I would like to kind of review the list,
where this man has voted so many times to protect minorities and
womenand I have the citations, and I do not want to just enter
them into the record.
So with that, Mr. Chairman, I thank you for your courtesy.
The CHAIRMAN. I can assure the Senator that he will have every
opportunity, as every Senator will here, to ask any questions he
has. The fact is that we have had on both sides of the aisle here a
deep interest in continuing to pursue these questions, and every
Senator will have a chance to do that. Hopefully, those questions
will expire by the end of tomorrow, but we will not cut people off.
Senator DeConcini.
Senator DECONCINI. Mr. Chairman, thank you very much.
Judge Bork, I had to leave the Appropriations Committee and a
few other thingsI was chairing a subcommittee thereto go to a
markup, and I was not here for all of your answers this morning,
although I was here when you responded to Senator Thurmond re-
garding the equal protection discussion that we had yesterday as it
relates to gender and as it relates to racial discrimination, and it
was helpful. I must say that after yesterday I was very concerned. I
392
still have a couple of points, if I could get to them, and you may
want to clarify anything that you said yesterday.
First, let me just clarify this, Judge. You have stated that you
now believe that the fourteenth amendment, the equal protection
clause, applies to women. There is no question about that, is there,
anymore?
Judge BORK. None; it applies to everybody.
Senator DECONCINI. It applies to everybody. Fine. Okay. So, now
that we accept that basis, is it still correct that in the interview
that you did just less than 3 months ago, you stated in that inter-
viewand that is this one of July 10th, 1987are you familiar
with thatthe United States Information Agency
Judge BORK. I do not recall it particularly. Maybe there is a copy
around here someplace.
Senator DECONCINI. Yes. Can someone give the Judge a copy of
this? Okay.
Judge, what bothers me about that is down at the bottom of that
page where the paperclip isand I do not want to take this out of
context at all. You stated there, "I do not think the equal protec-
tion clause probably should have been kept to things like race and
ethnicity."
Judge BORK. Ethnicity, yes.
Senator DECONCINI. Yes. Is that your position?
Judge BORK. NO. This goes back to the discussion we had, Sena-
tor, about if you are going to do it by groups, then I think the
groups they were primarily talking about were racial groups and
ethnic groups.
However, if you do not do it by groups, but do it by all persons
on a reasonable basis test, which I think is closer to the language
of the amendment, then everybody is included. And you see what I
was leading up to, which is on the next page.
Senator DECONCINI. Yes. I saw that.
Judge BORK. In that speech I was referring to a case which I
frankly thought was a little odd. That was a case aboutI forget; it
was Idaho, I thinkbut it had a law that in order to drink 3.2 beer,
a man had to be 21, but a woman could be 18 years of age. And I
said I thought that was to trivialize the Constitution in a way.
They produced six opinions in that case about whether you could
have a different drinking age for men and women for 3.2 beer. You
would have thought it was the steel seizure case the way they went
at it. And I thought, as a matter of fact, the differential drinking
age probably is justified, because they have statistics on
Senator DECONCINI. But you would notin your rational or rea-
sonable test there, that would not fall into this area, that particu-
lar law
Judge BORK. NO, no; you would examine it.
Senator DECONCINI. YOU would examine it.
Judge BORK. But they had evidence that there was a problem
with young men drinking more than there was with young women
drinking. Now, I do not know if the evidence was good. You would
have to examine it. But they had that evidence.
That law was preferential to women, by the way, Senator.
Senator DECONCINI. Yes, I understand that. It does not make too
much difference from the standpoint of what we are talking about.
393
Judge BORK. No, I know that, but from the standpoint of people
saying that I disfavor women, this is a case in which I was
Senator DECONCINI. I understand.
Judge BORK. They had a lot of evidence about differential drink-
ing patterns and resultant troubles, automobile accidents and so
forth, upon which they based that differential.
Senator DECONCINI. But based on that particular case. Let us
just go back to that case for a moment. Based on that case, you do
not believe that that rational standard or reasonable standard
would apply or you do?
Judge BORK. Oh, no, the standard applies. The question is wheth-
er there is a reasonable basis for having a differential drinking age
of 3 years. Now, maybe there is; maybe there isn't.
Senator DECONCINI. YOU don't have an opinion on that case?
Judge BORK. NO. I would have to look at the evidence in the case.
They got into some statistics. Statisticians tell me they didn't
handle the statistics very well.
Senator DECONCINI. Let me go to a couple of other cases. Senator
Thurmond questioned that your form of reasonable basis analysis
would follow where the Supreme Court is now, but without having
to group people into categories, if I understand it.
Now, you cited the unanimously decided REED case of 1971 as one
of the Supreme Court decisions that you support, is that correct?
Judge BORK. Yes, that's correct.
Senator DECONCINI. NOW, what about some of the post-Reed
cases like the Craig v. Boren case where you stated, quote,
when the Supreme Court decided that having different drinking ages for young men
and young women violated the equal protection clause, I thought that was trivializ-
ing the Constitution and to spread it to areas it did not address.
Now, taking that case, I have a problem, Judge. Where are you?
Justice Powell, Stewart and Stevens, who you've cited here quite a
bit, stated and Justice Powell stated in his concurring opinion,
This gender-based classification does not bear a fair and substantial relation to
the object of the legislation.
Now, I am trying to find out where you draw the line in your
reasonable test, and I have not found that out, and if you could
help me in a few words, it would be helpful. Let me go ahead and
give you two more cases and then you can answer all three of them
and maybe I can understand it.
Let me give you a couple of cases using what I consider the strict
or the higher level of scrutiny struck down. The statutes in ques-
tion which I am going to give you here are which, under the basis
of violating equal protection clause. Yet the dissent in these cases
said the rational basis test should have been used and the statute
should have been upheld. One is the Frontiero v. Richardson case,
if you are familiar with that case, a 1973 case. Under the statute a
serviceman could claim his wife as a dependent for the purpose of
obtaining increased living allowance, medical and dental benefits
without regard to whether she was, in fact, dependent upon him or
any part of her support was dependent upon him. But a service
woman may not claim a husband as a dependent for such purposes
unless he could prove that half of his support was dependent on
394
her. Now, that case was decided 8 to 1 with Rehnquist writing the
dissent.
Now, another case very near to that is Kaban v. Muhammed
1979. Under that statute, a mother but not the father of an illegi-
mate child could block the adoption of a child by withholding the
consent. Now, that was a 4 to 5 decision with Justice Powell writ-
ing that.
Now, comparing these two cases and comparing that rational test
that was applied to both of these cases, I understand these cases
that the dissent used that rational, quote, "reasonable" test which
you said is that you used, as I understand it correctly and is your
view of the rational basis test different from the dissenters in these
two cases or is that what it is, and if it is, I understand it. It
doesn't throw you out of the Supreme Court as far as I'm con-
cerned.
What I want to know is where you are.
Judge BORK. I think, Senator, didn't my office and I defend the
distinction in Frontierd? I think we had to because I think it was a
congressional statute we were defending.
Senator DECONCINI. Did your office defend it? You mean, when
you were Solicitor?
Judge BORK. Yes.
Senator DECONCINI. I don't know, sir.
Judge BORK. Well, I think maybe we did. But anyway, no
Senator DECONCINI. I mean, is that relevant?
Judge BORK. NO.
Judge BORK. I am just curious.
Senator DECONCINI. Fine. I would be glad to find out.
Judge BORK. NO. I can find out. There is a casebook around here.
Senator DECONCINI. I can, too, and I will be glad to find out and
let you know.
Judge BORK. It is not really relevant. Well, I can't tell from that
whether I did or not. It just gives a date.
Senator DECONCINI. Yes. Well, I am sorry I don't know the
answer to that.
Judge BORK. NO, it doesn't matter. I shouldn't have raised it.
But, no, you can use heightened scrutiny, intermediate scrutiny
and lower scrutiny, or you can use the reasonable basis test.
Senator DECONCINI. NOW, let me ask you there, the reasonable
basis test doesn't fall in any of those three in your judgement?
Judge BORK. NO. It is a different methodology.
Judge BORK. And people who use heightened scrutiny on a par-
ticular case may come out different ways. People who use interme-
diate scrutiny may come out different ways. It is a matter of judge-
ment.
Similarly, people who use the reasonable basis test may come out
different ways. You know, it is like original intent. That doesn't
give you a mechanical answer. What it does is get you into where
you are starting from. That is all.
So the people who use, if they use rational basis or whatever
they called it in Frontiero and
Senator DECONCINI. Rational basis is what they used?
395
Judge BORK. Yes.
Senator DECONCINI. The dissent used the rational basis?
Judge BORK. Kaban or whatever it is, that is probablyyou
know, you could use the same thing and disagree with them. Now,
I think in Frontiero, or at least as you described KabanI don't
know the casethe mother but not the father could block the
adoption, that doesn't sound on the face of it very reasonable.
But, you know, I shouldn't be saying that because I haven't ex-
amined all the facts.
Senator DECONCINI. SO I did misunderstand you yesterday. I
gathered yesterday that your reasonable standard on cases involv-
ing sex discrimination, gender discrimination was similar to the ra-
tional basis. That is not the case?
Judge BORK. NO. NO, it is not the lowest level of scrutiny.
Senator DECONCINI. Okay. Now, is the reasonable standard test a
fourth test?
Judge BORK. It is an entirely different methodology.
Senator DECONCINI. We are talking about heightened, intermedi-
ate, rational, and now reasonable?
Judge BORK. NO, it is an entirely different methodology. Instead
of saying what degree of scrutiny is this group entitled to when a
statute disadvantages them, it asks, is the differentiation made, the
disadvantage made reasonable in light of a valid governmental pur-
pose?
Now, for example, I would think as far as gender is concerned
you could get, using a reasonable basis test, results at least as fa-
vorable to women as you would using intermediate scrutiny. Be-
cause in our society, that is, as it has evolvedand I made a point
in one of my decisions, the Oilman case, of saying that as society
evolves constitutional doctrine will change, but it changes in cer-
tain ways.
The kinds of distinctions between men and women that are now
allowable because reasonable are almost entirely based upon bio-
logical differences and whether the particular
Senator DECONCINI. Isn't that the same as rational?
Judge BORK. YOU know, I don't know if it is the same as rational
or not, but I am telling you the level at which I apply it.
Are almost entirely based upon biological differences, and there
are only a few things in life as to which a biological difference
makes a difference.
Senator DECONCINI. Otherwise, you would apply the intermedi-
ate or the strict interpretation, or test standard?
Judge BORK. I was trying to get away from theas Justice Ste-
vens did, and I think I like his position betterI was trying to get
away from a methodology under which each group has its own
level of scrutiny. Because I remember teaching this stuff in law
school, and at one point we had 2Vz levels or 3Vfe levels of scrutiny,
and I think it becomes highly artificial.
I think it is better to look at it and say this law makes a distinc-
tion, does it make any sense? There was a time in this country
when the distinction made in Frontiero, that is, we will assume
that a woman is a dependent and a man is not, might have made
some sense. That was a time when women were not in the market-
396
place. So that they would have to prove that they were in the mar-
ketplace.
That distinction now makes no sense because women are heavily
into the marketplace, into careers, and so forth. Hence, the result
in Frontiero follows.
Senator DECONCINI. But, in Frontiero, the facts are that Rehn-
quist used the rational basis test.
Judge BORK. I think he is probablyas I recall his cases and his
testimony here before this committee, I think he is using this
multi-tiers of analysis, strict scrutinyhe is using rational basis as
the third and lowest level of scrutiny in these tiers. I am not even
in that game, and neither is Justice Stevens.
Senator DECONCINI. SO, you are not going to take to the Court, if
you are confirmed, this three tiers?
Judge BORK. NO.
Senator DECONCINI. YOU are going to take one tier? Both as to
gender discrimination cases and race discrimination cases?
Judge BORK. True.
Senator DECONCINI. IS that correct?
Senator DECONCINI. SO you won't apply the strict interpretation
to the race discrimination test?
Judge BORK. Well, in race
Senator DECONCINI. YOU are going to use reasonableness on ev-
erything is what you are saying?
Judge BORK. Yes. But in race, almost no distinction I can think
of is reasonable.
Senator DECONCINI. Well, I agree with you vis-a-vis you would
use the strict interpretation, or the strict standard.
Judge BORK. Yes.
Senator DECONCINI. But maybe it is semantics.
Okay, let me go to something else, Judge. And that is helpful.
Let me say, also, I appreciate the time you have spent with this
committee and the forthrightness that you have displayed over the
last few days. As we talked before you came here for the actual
confirmation hearing, you have been forthcoming and it has made
a great deal of difference to me because of the circumstances sur-
rounding your nomination. Not you personally, just because of the
circumstances of why we are here.
I am very concerned, Judge Bork, about the activism, charges of
and my belief of overactivism on the Court today, and then I scruti-
nize a number of judges who have sat on the Court who are in the
conservative column, and they seem to have some activism, too.
And you certainly have been very critical of the Supreme Court,
and some of the opinions you have written and gone into, I want to
review one because I want you to explain what activism is to you
and does it apply to you when you expound on a case.
I want to turn your attention to Finzer v. Barry. I want to ac-
knowledge that the Supreme Court has granted certiorari in the
case, and that it would be improper for you to comment on any
aspect of the issues presented by that case, so I am not going to try
to do that.
397
The question that I do have is how do you go about in determin-
ing the framers' intent, and is that activism as you explain that?
And let me read you some of the opinion.
In that opinion you state:
The framers understood that the protection to foreign embassies from insult was
one of the central obligations of the law of nations. It is also clear that the Founders
who explicitly gave Congress the power to enforce adherence to the standards of the
law of nations, which they understood well, saw no incompatibility between the na-
tional interest and any guaranteed individual freedom.
I find this to be an interesting quote. It almost iswell, let me
say this. When a decision, in your opinion, calls for an analysis of
the framers' intent, I want to know how you come to that in lieu of
this case.
In this particular decision you did a thorough and long overview
of threats to embassies and how governments attempted to protect
them. You cited "Blackstone's Commentaries," a letter written by
Millard Fillmore in 1851, an article written on the law of the na-
tions in 1863, an incident in Philadelphia in 1902 in which a for-
eign flag was burned and no one was prosecuted, a U.S. Attorney
General's opinion in 1794 that says the law of libel is strengthened
in the case of foreign ministers because the law of nations secures
a minister from insult, and a 1779 resolution by the Continental
Congress urging that the right of ambassadors be protected.
This process seems to me a very laborious process that you went
through, and I enjoyed reading it, I must say, for the history in-
volved in itfor you to go through to arrive at your decision that
"it is also clear that the founders who explicitly gave Congress the
power to enforce adherence to the standards of the law of nations,
which they understood well, saw no incompatibility between this
national interest and any guaranteed individual freedom."
How would you respond to the statement, when you are a non-
activist and a strict interpretationist, if you want to call it that, or
believe in the original intent that we have discussed here for 2 or 3
dayshow do you rationalize this long historical basis for your de-
cisions that seem to go far away from the original intent?
Judge BORK. May I have the page number there, Senator?
Senator DECONCINI. The page of the case?
Judge BORK. Yes.
Senator DECONCINI. Just a minute, and I will get it for you. I will
get you the case, I think.
Judge BORK. I am trying to understand why you think I departed
from the original intent, because I thought that is what I was talk-
ing about, for the most part.
Senator DECONCINI. It is on page 1457.
Judge BORK. Let me say one other thing, Senator, about activism
and result orientation. As you and I know, but not all our listeners
may, "result orientation" is a term of art that we judges use de-
scribing some judges methods for judging a case, in which a judge
would pay more attention to results than legitimate reasoning.
The people in this case who brought the lawsuit and whom I
ruled against were conservatives who wanted to go out and speak
and pray, and congregate in front of the Soviet and the Nicaraguan
embassies. So when I ruled against them, it was not exactly an
action of a conservative activist. And what I didby the way
86-974 0 - 89 - 15
398
Senator DECONCINI. But on the other hand, it supported the Gov-
ernment's position, that the Government wanted
Judge BORK. This Congress' position. This Congress passed the
statute
Senator DECONCINI. And who signed the statute? I assume it is
the law of the land, right?
Senator DECONCINI. It is the law of the land.
Senator DECONCINI. I mean, it is not just the Congress.
Judge BORK. That is right. The President signed the statute. But
I mean, this statute was framed
Senator DECONCINI. All right. Go ahead.
Judge BORK. by Congress, and enacted, and the only question
was is it constitutional. It prevents people from carrying placards,
as I recall, offensive to a foreign embassy within 500 feet, or con-
gregating there. And it has therefore both aspects. One is the
aspect of protecting the security of the embassy, and we had affida-
vits about the difficultyif we allow people right up close to the
embassy, it becomes almost impossible for the police to protect the
security of the embassyand the aspect of insult to the ambassa-
dor and his staff. And that is what Congress had in mind.
Those are deeply-rooted in our constitutional tradition. The fram-
ers were worried about insult to ambassadors. The Continental
Congress, as you pointed out, was worried about it. In fact, one
reasonnot a major reason, but one reasonI think, for a Consti-
tutional Convention was that before the Constitution they had to
rely upon the States to protect ambassadors, and not all the States
would do so, and our foreign relations were in kind of a tangle and
a mess.
And therefore in article I, section 8, clause 10, Congress is explic-
itly given the power to define and punish offenses against the law
of nations. And offenses to ambassadors or dangers to the security
of ambassadors is, of course
Senator DECONCINI. Well, my concern, Judge Bork, is that in
your original intent as I understand it, you look to the circum-
stances when the amendment was passed, the intent of the fram-
ers, and here, I am concerned that here you looked at a letter writ-
ten by Millard Fillmore in 1851, which is certainly not the time of
the amendment
Judge BORK. Oh, I see, I see.
Senator DECONCINI. the time of the amendment; an article
written on the law of the nations in 1863; an incident in Philadel-
phia in 1902. What troubles me here is that if you are truly what
you say you are and what I believe you are, more an original inten-
tor than an expansionist, how do you rationalize using this sort of
thing to come to original intent? I just do not follow it, that is all.
And maybe there is a logical thing, because a couple of them, you
doyou go back here to the Continental Congress. That certainly
was in the time when this was coming about, 1779. But these
others really, I just could not figure it out.
Judge BORK. Well, as you point out, Senator, I went down
through all this history about the Continental Congress, about the
old writers, like Batelle, on the law of nations, and a complaint by
399
the British government in 1794 because of a riotous assembly
before the house of a foreign council, and the opinion of the Attor-
ney General in 1794, and so forth. And I first established that
Edmund Randolph and John Jay and so forth, all these people, had
these views; and that one of the first things the new Nation did
John Jay subsequently said, "It is of high importance to the peace
of America that she observe the law of nations," and the safety and
dignity of ambassadors is central to that.
I established that as a matter of original intent. Then, I thought
it important to point out that this has been a continuing intellectu-
al tradition in the law, right down to the present day, and that is
why I went
Senator DECONCINI. SO you used current history, or more current
history, to attempt not to go to the original intent, but to substanti-
ate that that original intent has been followed; is that what you
are saying?
Judge BORK. Yes, yes.
Senator DECONCINI. Okay, okay. I understand it now, because to
me, that was quite unclear when I read your articles on original
intent, which I did not disagree with in total at all, but then I read
this opinion and I said, wait a minute, where does he come out.
Judge BORK. Well, I just want to point out, Senator, that Chief
Justice John Marshall, in M'Culloch v. Maryland, not only cited
the original meaning of the Constitution, but he brought the prac-
tice under the Constitution down to his day to show that that sup-
ported his understanding of the original intention.
Senator DECONCINI. We only have a few more minutes here, and
then we are going to take a short recess, Judge, and then Senator
Grassley, I think, will be up.
Let me go into one more quick area, judicial restraint. It has
been stated by some of your supporters that your personal views do
not enter into your judicial analysis of the case. In describing the
unwelcome heterosexual harassment of a subordinate by a supervi-
sor in Vinson v. Taylor, you use casual, sometimes what I would
term flippant, words. However, in describing the consequences of a
consentual homosexual relationship in the Dronenberg case, you
statedand I want to read it real quickly
Episodes of this sort are certain to deleterious to morale and discipline, to call
into question the even-handedness of superiors dealing with lower ranks, to make
personal dealings uncomfortable where the relationship is sexually ambiguous, to
generate dislike and disapproval among many who find homosexuality morally of-
fensive, and it must be said, given the powers of military supervisors over their infe-
riors, to enhance the possibility of homosexual seduction.
Then you go on in that opinionwhich I am sure you are famil-
iar with; you did not write it that long ago, and I read it with some
interestyou go on at great length, I think it is about nine pages,
explaining this.
In this kind of a case, what brought you to expand and put in
what appears to be your philosophy? Is that judicial activism?
What do you call it?
Judge BORK. NO, Senator. Do you mean the discussion of the pri-
vacy cases?
Senator DECONCINI. That is right; yes, sir.
400
Judge BORK. No, Senator, I do not think so. That case was argued
almost entirely by the attorneys from the privacy cases. They said
that the privacy cases require this result, and they went through
all of the cases I discussed, and pressed it. And that is why I felt in
fairness, I ought to
Senator DECONCINI. That is why you answered every one of those
cases?
Judge BORK. Yes, I did.
Senator DECONCINI. And the Vinson case versus the Dronenberg
case, do you recall the difference in there that you did not answer?
Is that the same reasonthey did not cite any privacy in the
Vinson case?
Judge BORK. The Vinson case is not a case in that sense. I mean,
I was not on the panel. And this was merely a dissent from a
denial of a petition for rehearing en bane. That is, I never had an
attorney before me or a brief before me.
Senator DECONCINI. YOU did not hear any arguments on the
Vinson case
Judge BORK. NO, no. What I was saying was that the panel opin-
ion was wrong. And as a matter of fact, although people, I think,
have mischaracterized what happened in the Supreme Court, the
Supreme Court agreed with me on the two important issues in the
case.
Senator DECONCINI. SO it is fair to say, going back to the Dronen-
berg case, that if in the arguments, the briefs before you, if you
were on the Supreme Court, if they did not cite all these privacy
cases because of your judicial restraint that you impose on your-
self, you would not yourself embark on such discussions?
Judge BORK. Oh, that is entirely true; that is entirely accurate,
Senator. I do not view a court's opinion as a place for a law review
article.
Senator DECONCINI. YOU only do that when the cases are speci-
fied in the material brought before you; is that what you are
saying?
Judge BORK. Yes, exceptI should make this qualification. If I
answer the cases, and that sort of brings to mind another argu-
ment along that line that might have been made, I may say, "But
that would not help, either." But I would not do it unless it were
germane to the issue at hand, because I do not believe judicial
opinions are the place for writing law review articles. If I want to
do that, I will write a law review article.
Senator DECONCINI. Well, when I read the Dronenberg case, I
thought it was a pretty good law review article, quite frankly, on
the privacy, and I mean that as a compliment
Judge BORK. Well, it may be.
Senator DECONCINI. I read it, but I could not understand why it
was there.
Judge BORK. Oh, that was entirely what the argument was about.
Senator DECONCINI. Thank you, Mr. Chairman. My time is about
up, and I am going to go vote.
The CHAIRMAN. Senator Grassley?
Judge BORK, once again, this starts my second round of question-
ing, and I think I ought to begincan you hear me
401
Senator GRASSLEY. I want to once again welcome you back before
the committee. I know it is a lot of hard work.
Before I start some questioning, I want to say something that I
think needs to be said. This has been touched on before, but I think
it bears repeating. For about 12 hours now, you have responded to
some of the most intense questioning. You have been under a great
deal of scrutiny, and I think that you have done very well indeed.
But the point I want to make is that I do not think in the history
of the Senate has a nominee been subject to this kind of question-
ing; and, never has a judicial nominee like you been so forthcoming
in his views. And I hope that I am right when I say that it is my
recollection of history that it was not until 1955 that this commit-
tee even made it a practice of questioning Supreme Court nominees
on their views.
So by my count, that would mean that we probably, in the histo-
ry of our country up to that point, had 90 Supreme Court Justices
serve without such questioning, and many of those 90 served with
distinction. They were approved and then took their place on the
Court without going through any of the formal questioning process
that you are going through.
So I think some perspective is in order. It is to your credit; your
full knowledge of the law; what people watching on television
ought to see as a powerful intellect. And I do not know how any-
body can recall such long ago happenings and writings and events
as you do. You have been able to recall quite a bit. I think you
need to be complimented for that.
I believe that you have responded, it seems to me, with candor
and more patience than any Senator would ever have, and obvious-
ly more grace than any Senator would have. So thank you very
much.
These inquiries that we have been questioning you about now for
these last 12 hours have covered the full scope of your lifetime in
the Jaw. This involves more than 100 legal opinions that you have
written while you have been on the D.C. Circuit, dozens of law
school review articles that you have written, countless speeches
that you have made, and your Solicitor General briefs. I could go
on and on about what you have drawn on to answer these ques-
tions.
Today, we have branched out into some quotes from a 462-page
book on antitrust law that you wrote, I believe, back in 1978. And
make no mistake about it, most of these questions have been tough;
many have been fair. I do not know whether you have former stu-
dents of yours watching, who would have taken some first-year law
school classes from you; however, they may take some personal
pleasure in seeing a former professor on the receiving end of the
Socratic method.
Two days ago, some people announced that you are a rigid ideo-
logue, with a closed mind on a whole host of legal issues. Just yes-
terday, some of these same people said that you change your mind
too much or that, even worse, you have styled your responses to
advance your legal career.
402
Of course, I guess maybe lawyersand I am not a lawyer, as you
recallmay call this "arguing the alternative." In politics, we call
it "having it both ways".
What really needs to be said is almost self-evidentthat there is
no one in this room, particularly those of us in this body, who
could withstand the kind of scrutiny that you have, and I just want
to take a few minutes out of my half-hour to commend you for
that.
Judge Bork, I do not expect you to recall where I left off yester-
day, but that is where I want to take up. You and I were in the
process of discussing how it is that the Bill of Rights can evolve. As
a follow-up of the evolution of rights, does the fact that the applica-
tion of the fourth amendment in the 20th century, covering illegal
electronic surveillance, or that the first amendment covers the
electronic media, tell us that your philosophy allows the Bill of
Rights to evolve?
Judge BORK. Yes, it does, Senator. I point out that I wrote exten-
sively about that in the Oilman case, and I did so because I was
challenged by the dissent, about how can these rules ever change.
And I wrote extensively in that case about how rules can evolve in
order to protect the original value that the framers wanted to pro-
tect, as circumstances and technologies change around us.
Senator GRASSLEY. Could you give me again, then, your general
approach to the problem of applying the words of the Constitution
to problems that the founders could not have foreseen?
Judge BORK. I think, Senator, one way of putting that is that you
look at the founders and the ratifiers, and you look at the text of
the Constitution, their words, what it was that was troubling them
at the time, why they did this, and you look at the Federalist
Papers and the Anti-Federalist Papers and so forth and so on and
so on, to get what the public understanding of the time was of
what the evil was they wished to avert, what the freedom was they
wished to protect. And once you have that, that is your major
premise; and then the judge has to supply the minor premise to
make sure to ask whether that value, that freedom, is being threat-
ened by some new development in the law or in society or in tech-
nology today. And then he makes the old freedom effective today in
these new circumstances.
That is going to mean changing legal doctrine, evolving legal doc-
trine, in order to protect the original value or freedom that the
framers and ratifiers of the Constitution wanted to protect.
Senator GRASSLEY. But you have to contrast, thenam I right
the evolution of rights in the Constitution with what you might
call the wholesale creation of totally new rights?
Judge BORK. Oh, that is right. The freedom, the value, to be pro-
tected by the judge is always the lawmakers, in this case, the ratifi-
ers, of the Constitution, and not the judges' values.
Senator GRASSLEY. Judge Bork, yesterday and again today, I
think that you did a very good job of explaining to this committee
the very important distinction between the result in a case and the
reasoning behind that result. In other words, you may agree with
the result as a policy matter, but still quarrel with the reasons sup-
porting that result.
403
I think this is, at least what I sense as the essence of your judi-
cial conduct. But I think it is important for us to go over that again
and again and again.
Can you explain again to the committee why the reasoning of a
court is often more important than the mere result?
Judge BORK. A judge has power over people, and it is important,
since he is unelected and probably unrepresentative of the Ameri-
can people, it is important that he demonstrate by his reasoning
that there is law that he is applying and that he is not applying his
personal values or principles. And that is why the reasoning in an
opinion is crucial. That is the judge's showing of his warrant to do
what he does. That is the only thing a judge has to prove to the
public that what he does in this case, and why this person loses,
and why the rule is as it is, is a legitimate rule and a legitimate
result, because he must show his warrant by reasoning from the
Constitution or from the statute.
Senator GRASSLEY. IS the public following the Court's opinions
the rationale behind this?
Judge BORK. Yes. I think opinions serve a lot of functions. One,
the losing party at least is given a good reason why he or she lost,
and that is important, that people to understand that they were
heard, and that a reason has been given. It also is a statement to
the public that the judge is exercising his or her power legitimate-
ly. It is also an essay, in a sense, to other people who may be affect-
ed in the future by this area of the law so that they can predict
likely developments in the law.
Opinions serve a lot of functions.
Senator GRASSLEY. Well, what you say about results on the one
hand versus reasoning on the other, to put you in proper perspec-
tive, is nothing out of the ordinary, is it?
Judge BORK. NO. I think judges have been saying that since the
beginning of the Republic. And Joseph Story, a great Justice and a
professor at Harvard Law School at the time, a man who sat on the
Supreme Court with Chief Justice John Marshall, wrote a book on
the Constitution, and he very clearly states that this is the way you
interpret the Constitution. And I am in utter agreement with Jus-
tice Story. That is an old and hallowed tradition in the law.
Senator GRASSLEY. In fact, isn't that about the first thing that a
new law student learns in law school: the legal reasoning is more
important than the mere result?
Judge BORK. Well, I think that is true.
Senator GRASSLEY. Over the past few weeks, I have seen some so-
called analyses of your opinions during the period of time that you
have been on the D.C. Circuit. These analyses took a look at what
would be a fraction of the cases that you participated in, and con-
cluded that your vote could be predicted based on the status of the
parties in the case. In other words, they said the result in your
cases is predictable by identifying the plaintiff and the defendant
in the case. Public interest groups, they say, always lose; the Gov-
ernment always wins, and on and on and on.
Are you familiar with these studies, done by Ralph Nader's
groups and others?
404
Judge BORK. I have to sayand I hope I do not hurt anybody's

feelings, Senator, that I did not read those studies. But I am famil-
iar with what they say, and I think that
Senator GRASSLEY. Well, I do not think that matters. I think you
can answer my question.
Judge BORK. Oh, sure, sure.
Senator GRASSLEY. Let me ask you to return a minute, if I could,
to your days as a law professorand you were in one of the best
law schools in the United States, Yale University. Let me ask you
what you think of the legal scholarship of those analyses, even
though you did not read themyou read the newspapers and have
some idea of what they are talking about.
Judge BORK. Yes, oh, yes, I did. Well, some of them were very
strange. I remember one I read about, told about, that classified all
my pro-business decisions, and among my pro-business decisions
was a decision holding for the labor union against the federal labor
relations authority. And they said, well, a labor union is really a
business, or something like that, and the categorization really got
fairly comical.
And I think the other dayI cannot remember now how it came
upa Senator was pointing outmaybe it was Senator Humphrey,
but I am not surewas pointing out a number of decisions in
which I voted for the individual against the corporation or the indi-
vidual against the Government. There are lots of cases like that.
I should say, Senator, and I intend to put into the record here,
sooner or laterI just keep forgetting to do itif you look at my
decisions on race, on women, on labor unions, on individuals versus
the Government, you will find no consistency along those lines.
You will find no political axis, no political line along which those
decisions line up. They go both ways. They line up only according
to legal reasoning.
Senator GRASSLEY. NOW, in my questioning, I am not particularly
asking you to defend yourself in the sense of how these analyses
have rated you, but I am asking you to look at it as a law school
professor from the standpoint of these analyses of you. It seems to
me that they probably read the first page, to see who was involved
in the case, and then read the last page, to see who won, but con-
veniently skip over all the reasoning in-between.
Judge BORK. Well, they conveniently skip over even who the par-
ties were, because they say, well, he voted forI remember there
was one criticism about a case. He voted for railroads, against the
ICC. That shows he is pro-business. What they did not mention was
that with the ICC was Alcoa, fighting with the railroads.
Now, Alcoa, I suppose, thinks of itself as a business. I think of it
as a business. So, how that gets to be a pro-business decision, I do
not know. There was business on both sides of that case.
Senator GRASSLEY. Well, let me ask you, if one of your students
when you were teaching in law school had handed in a paper like
that, what kind of a grade would you have given that kind of legal
analysis?
Judge BORK. Well, it would not be a passing grade, Senator; it
would not be.
405
Senator GRASSLEY. I take it that you are willing to let your spot-
less record on appeal to speak for the power of the reasoning in the
cases that you have participated in?
Judge BORK. Yes. I have said what I have said about the judges'
function and the importance of the reasoning, and I have a record,
a lot of cases with a lot of reasoning, and I would like to be judged
on that record.
Senator GRASSLEY. Judge Bork, yesterday I thought you clearly
distinguished your view of the Supreme Court's rationale in some
14th amendment cases, and you demonstrated again that you fun-
damentally differ with result-oriented judges, and as I hear it, you
are more concerned with legal rationale or thoughtful approach.
But then, I read in this morning's local newspaper, the Washing-
ton Post, to find it suggested by your opponents that you are itch-
ing to overrule Boiling v. Sharpe and bring back segregated schools
to the District of Columbia.
Judge BORK. Oh, that is absolutely preposterous. Nobody is going
to pass, in the first placethis Congress is not going to pass a stat-
ute segregating the schools in the District of Columbia. If this Con-
gress, in a fit of forgetfulness did, Boiling v. Sharpe is precedent
there is absolutely no reason to overrule; none.
You know, all kinds of expectations and institutions have grown
up around it. And this morning, I also mentioned that one might
have supported Boiling v. Sharpe on a first amendment rationale,
and perhaps I did not explain that too clearly.
The first amendment protections include associational rights as
well as other rights. And a law forbidding associations on grounds
of race mightI do not say would; I am not adopting a legal
theory; I am just saying we are into an area of arguability here
might be attached on associational right grounds under the first
amendment.
But to say that the reasoning of any case seems not adequate is
not to say you want to overrule it, and it is certainly not to say you
want to bring back the underlying statute. Neither of those is true
in my case.
Senator GRASSLEY. Well, I hear you. I just wonder if you are as
frustrated as I am, though, that people are not taking the trouble
to listen to what you are saying.
Judge BORK. Well, you know, it is funny; I did see one brief com-
ment in the paper this morning. It said that I denied that I was a
racist, though nobody had accused me.
No, nobody had accused me, but Senator Humphrey asked me di-
rectly whether I was, and I said no. All of a sudden, I am denying
things nobody has brought up. That is ridiculous.
Senator GRASSLEY. If I could move on, Judge Bork, I would like
to talk about something we have heard a lot about.
The CHAIRMAN. Excuse me. Judge, where did that appear?
Judge BORK. I do not know. Unfortunately, Senator, I get three
papers in the morning. But I saw something in the middle of a
story. I think that it said
The CHAIRMAN. YOU have a right to be upset if that is true, be-
cause I recall specifically your being asked that.
Judge BORK. Being asked; I was asked that, yes. As I recall, the
story said that I denied it, though I was not accusedwhich sounds
406
like, "The guilty flee where no man pursueth." But I was asked the
question.
The CHAIRMAN. YOU were, in fact, asked the question.
Senator GRASSLEY. Judge Bork, we have heard a lot about the
issue of standing; that is, standing to sue in the federal courts.
Again, remembering the fact that I am not a lawyer, I would like
to bring up a technical area that I want to explore with you in the
doctrine of standing.
I would like to just have you explain your views of this doctrine.
Judge BORK. My views of this doctrine are almost identical with
those of the Supreme Court. It is a separation of powers doctrine,
and it is a doctrine that is essential to keep the courts from domi-
nating the society. As Lewis Powell has said, standing is about the
proper and properly limited role of courts in a democratic society.
And that is this reason. And this, oddly enough, I got from a
speechit is in a footnote somewhere, if I cannot find it nowI got
from a speech given by Chief Justice John Marshall in Congress.
He said courts are there to decide controversies when an individual
or an organization has been hurt. And it has to be the individual
who has standing and not the issue involved which gives standing.
Otherwise, courts could just take on any issue they wanted to and
practically run the government.
Standing is a way of making sure that people are really hurt,
suffered some injury, before they come in to litigate some large
constitutional question or statutory question that they would just
like to litigate out of interest.
Now, there are two aspects of standing. One is the article III core
of standing. That is, the Court has said that part of standing being
a separation of powers question is demanded by the Constitution.
But there is an additional aspect of standing which is not demand-
ed by the Constitution, but the courts have required as a pruden-
tial matter. Congress is free to give standing in the area where
courts would deny it on prudential grounds, but not free to give
standing where the court thinks that article III denies standing.
Now, I should say that my opinions on standing, as I have an
analysis of them here by a professor you might all knowhe points
out that my views on standing are almost identical to Lewis Pow-
ell's. And indeed, I was following some Lewis Powell opinions. And
when I wrote a standing opinion, Justice O'Connor quoted my opin-
ion in her next opinion, so that
Senator GRASSLEY. What about commenting, on Justice Powell's
opinion in Wirth v. Seldin. I think he wrote the majority opinion
there, and that is a famous case in this area that maybe would tell
some of the members of the committee that have judged you based
on whether or not you ought to take Justice Powell's seat. If you
would speak to that, maybe you would show that your reasoning is
not much different than his.
Judge BORK. Well, it is entirely the same. In this
Senator GRASSLEY. Entirely the same?
Judge BORK. Well, as far as I can tell. I mean
Senator GRASSLEY. Well, yes. I just want to emphasize it; I am
not disagreeing with you.
Judge BORK. Well, I cannot say that we would never disagree on
a standing case, but the analysis is entirely the same.
407
Let me say in this opinion I wrote, Barnes v. Kline, I said I rea-

soned from Justice Powell's opinion in Wirth v. Seldin, and I
quoted him. He said,
In essence, the question of standing is whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues. This inquiry involves
both constitutional limitations on federal court jurisdiction and prudential limita-
tions on its exercise. In both dimensions, standing is founded in concern about the
proper and properly limited role of the courts in a democratic society.
Then I wrote, right below that,
This should make it clear that the jurisdictional requirement of standing keeps
courts out of areas that are not properly theirs. It is thus an aspect of democratic
theory.
And that is what it does. It is one way of confining courts to the
proper area of their authority.
Senator GRASSLEY. I have just one follow-up question on stand-
ing, and as you related it to Justice Powell, and then Senator
Hatch wanted just a little bit of my time.
We would not, then, based upon what you have just said and
what you believe, anticipate any major shifts in the Court's views
on this issue if you were to replace Justice Powell?
Judge BORK. No. I agree with the Court's line of rulings in recent
years.
Senator GRASSLEY. Okay. Senator Hatch?
Senator HATCH. Well, thank you, Senator, for yielding to me.
Mr. Chairman, I would like to put into the record at this time
and would ask that a committee clerk be asked to hand these out
to the members of the media100 selected law professors favoring
the confirmation of Robert H. Bork as Associate Justice of the U.S.
Supreme Court. And let me just draw attention to a few of them:
Dean Robert Mundheim, of the University of Pennsylvania Law
School, General Counsel at the Treasury Department under Presi-
dent Carter; Mary Ann Glendon, Harvard Law Professor, Chief
Editor of the International Law Encyclopedia; Bruce Hafen, the
Dean of the Brigham Young University School of Law; Albert
Blaustein, of Rutgers, President of the Human Rights Advocates
International; Henry Manne, Dean, George Mason Law School;
Paul Marcus, Dean of the University of Arizona Law School;
Steven Frankino, Dean of the Villanova Law Schooljust to men-
tion a few.
I think that these are eminent professors, eminent names, who
support your nomination and want to see you on the Supreme
Court, even though some of them may differ with you on individual
issues, as would be expected.
So if I could have this distributed, I would appreciate it.
[Document entitled "100 Selected Law Professors Favoring the
Confirmation of Robert H. Bork as an Associate Justice of the Su-
preme Court" follows:]
408
100 Selected Law Professors Favoring the

Confirmation of Robert H. Bork as an
Associate Justice of the United States Supreme Court
Robert Anthony - Professor, George Mason Law School. Director,

U.S. Office of Foreign Direct Investments (1972-1973). Chairman,
Administrative Conference of the United States (1974-1979).
Chair, Public Advisory Board, International Law Institute (since
1984).
Douglas Baird - Professor and Associate Dean, University of
Chicago Law School. Former Law Clerk to Judge Shirley
Hufstedler, Ninth Circuit Court of Appeals.
Gordon Baldwin - Professor and Chairman, Placement Opportunities
Committee, University of Wisconsin Law School. Counselor on
International Law, U.S. Department of State (1975-1976).
Chairman, Advisory Screening Committee on Law, Fulbright Program
(1974-1975).
John Baker - Professor, Indiana University Law School. Former
law clerk to Judge Harold Tyler.
Paul Bator - John P. Wilson Professor, University of Chicago Law
School. Former law clerk, Justice John Harlan. Associate Dean,
Harvard Law School (1971-1975); Deputy Solicitor General and
Counsellor, United States Department of Justice (1983-1984).
William Baxter - William B. Scott and Luna Scott Professor,
Stanford Law School. Assistant Attorney General for Antitrust,
United States Department of Justice (1981-1983). Books include
The Political Economy of Antitrust.
Lillian Bevier - Henry L. & Grace Doherty Charitable Foundation
Professor, University of Virginia Law School. Editor and Program
Consultant, Local Government Attorneys Association of Virginia
(1980-1984).
Rhoda Billings - Professor, Wake Forrest Law School. Associate
Justice, Supreme Court of North Carolina (1985-1987).
Albert Blaustein - Professor, Rutgers Law School. President,
Human Rights Advocates International. International Association
of Jewish Lawyers and Jurists (UN Rep.). Attorney, U.S.
Commission on Civil Rights (1961-1963). Desegregation
Consultant, Philadelphia School District (1963-1964). Books
include Constitutions of the Countries of the World.
James Blumstein - Professor, Vanderbilt Law School. Consultant,
President's Commission for the Study of Ethical Problems in
Medical and Biomedical and Behaviorial Research (1981) .
James Bond - Dean and Professor, Puget Sound Law School.
President, NC Fund for the Protection of Individual Rights.
Dent Bostic - Professor, Vanderbilt Law School. Dean, Vanderbilt
Law School (1980-1985).
Robert Byrn - Professor and Associate Dean, Fordham Law School.
Thomas Campbell - Associate Professor, Stanford Law School.
Former law clerk to Justice Byron White. Director, Bureau of
Competition, Federal Trade Commission (1981-1983).
William Carney - Charles Howard Candler Professor, Emory Law
School.
Gerhard Casper - William B. Graham Professor, University of
Chicago Law School. Dean, University of Chicago Law School
(1979-1987). Co-Editor, The Supreme Court Review. Books include
The Workload of the Supreme Court.
409
Don Castleman - Professor, Wake Forest Law School. Member, North

Carolina General Statutes Commission.
Robert Clark - Professor, Harvard Law School. Books include

Corporate Law.
Roger Cramton - Robert S. Stevens Professor, Cornell Law School.

Former law clerk to Justice Harold Burton. Chairman c* the
Administrative Conference of the United States (1970-1972).
Assistant Attorney General, Office of Legal Counsel (1972-1973).
Dean, Cornell Law School (1973-1980).
David Currie - Harry N, Wyatt Professor, University of Chicago

Law School. Former law clerk to Justice John Harlan. Chairman,
Illinois Pollution Control Board (1970-1972). Books include The
Constitution on the Supreme Court: The First Hundred Years.
Richard Day - Professor, University of South Carolina Law School.

Dean of the University of South Carolina Law School (1977-1980).
Rodolphe de Seife - Professor, Northern Illinois Law School.

Director, West Virginia Legal Resource Center (1973-1975).
Translator of China Comes of Age.
Robert Destro - Assistant Professor, Catholic University Law

School. General Counsel, Catholic League for Religious and Civil
Rights (1977-1982). Member, U.S. Commission on Civil Rights.
Richard Duncan - Professor, Nebraska Law School. Chair, NE

Advisory Committee, U.S. Commission on Civil Rights.
Gerald Dunne - Professor, St. Louis University Law School. Vice

President, Federal Reserve Bank of St. Louis (1967-1973). Books
include Justice Joseph Story and the Rise of the Supreme Court;
Hugo Black and the Judicial Revolution. Recipient, Scribes Most
Meritorius Book Award.
John Dunsford - McDonnell Professor of Justice in American

Society, St. Louis University Law School. Books include
Constitutional Freedom and the Law (with Dorsey). President,
National Academy of Arbitrators (1984-1985).
Robert Ellickson - Robert E. Paradise Professor of Natural

Resources Law, Stanford Law School.
James Ely - Professor, Vanderbilt Law School. Senior Resident

Associate, Vanderbilt Institute for Public Policy Studies.
Richard Epstein - James Parker Hall Professor and Editor,

Journal of Legal Studies. University of Chicago Law School.
Author of Takings.
Steven Frankino - Dean, Villanova Law School. Former Dean at

Catholic University Law School and at Creighton Law School.
Gerard Gilbride - Professor, Brooklyn Law School. Assistant

Dean, Brooklyn Law School (1955-1978).
Mary Ann Glendon - Professor, Harvard Law School. Chief Editor,

International Encyclopedia of Comparative Law. Vice President,
International Society on Family Law. Books include State. Law.
and Family.
Joseph Grano - Distinguished Professor, Wayne State Law School.

Reporter, Committee on Michigan Rules of Criminal Procedure.
Bruce Hafen - Dean and Professor, Brigham Young University Law

School. President, Ricks College (1978-1985).
Paul Haskell - Graham Kenan Professor, University of North

Carolina.
410
Clark Havighurst - William Neal Reynolds Professor, Duke Law

School. Adjunct Scholar in Law and Health Policy, American
Enterprise Institute.
Robert Hillman - Professor, University of California at Davis.
General Counsel, Star-Kist Foods (1979-1981).
Maurice Holland - Dean and Professor, Oregon Law School.
Henry Mark Holzer - Professor, Brooklyn Law School. Associate
Dean, Brooklyn Law School (1984-1986).
Donald Horowitz - Professor, Duke Law School. Fellow, Woodrow
Wilson International Center for Scholars (1971-1972); Resident
Associate, Brookings Institute (1972-1975); Senior Fellow,
Smithsonian Institute (1975-1981). Books include The Courts and
Social Policy-
Robert Hudec - Professor, University of Minnesota Law School.
Former law clerk to Justice Potter Stewart. Assistant General
Counsel in the Office of the U.S. Trade Representative during the
Johnson Administration (1963-1965).
James Huffman - Professor, and Director of the Natural Resources
Law Institute, Lewis and Clark Law School. Chair, Oregon
Advisory Committee, U.S. Commission on Human Rights.
Jerold H. Israel - Alene and Allan F. Smith Professor at the
University of Michigan Law School. Former law clerk to Justice
Potter Stewart. Governor's Commission on Criminal Investigation
(1969); Reporter, Commission to Revise Uniform Rules of Criminal
Procedure (1971-1974).
James Jacobs - Professor and Director, Center for Research in
Crime and Justice, New York University Law School. Books include
New Perspectives on Prisons and Imprisonment.
John Jeffries - Professor, University of Virginia Law School.
Former law clerk to Justice Lewis Powell. Author of The Trial of
John W. Hinckley. Jr.
Stanley Johanson - Bryant Smith Professor of Law, University of
Texas Law School. Board of Trustees, Law School Admission
Council.
Douglas Kahn - Paul G. Kauper Professor, University of Michigan
Law School. Books include Basic Corporate Taxation.
Thomas Kauper - Henry M. Butzel Professor, University of Michigan
Law School. Former law clerk to Justice Potter Stewart.
Assistant Attorney General for Antitrust, United States
Department of Justice (1972-1976). Executive Director, National
Institute for Consumer Justice (1971-1972).
Edmund Kitch - Joseph M. Hartfield Professor, University of
Virginia Law School. Special Assistant to the Solicitor General
(1973-1974).
Douglas Kmiec - Professor and Director, Thomas J. White Center on
Law and Government, Notre Dame Law School. Deputy Assistant
Attorney General, Office of Legal Counsel (1986-1987). Founder
and Editor, Journal of Law. Ethics and Public Policy.
Donald Large - Professor, Lewis & Clark Law School, Books
include Special Problems of the Deaf.
Saul Levmore - Professor, University of Virginia Law School.
Former Dean, Jonathan Edwards College, Yale University.
Lee Liberman - Assistant Professor, George Mason University
School of Law. Former law clerk to Justice Antonia Scalia;
former Associate Deputy Attorney General, United States
Department of Justice.
411
Edward Levi - Glen A. Lloyd Distinguished Service Professor

Emeritus, University of Chicago Law School. Attorney General of
the United States (1975-1977).
A. Leo Levin - Professor, University of Pennsylvania Law School.

Director of the Federal Judicial Center (1977-1987). Executive
Director, Commission on Revision of the Federal Court Appellate
System (1973-1975).
Wesley Liebeler - Professor, UCLA Law School. Director, Office

of Policy Planning, Federal Trade Commission (1974-1975).
Assistant Counsel, President's Commission on the Assassination of
President Kennedy (1974).
Jonathan Macey - Associate Professor, Emory Law School. Former

law clerk to Judge Henry Friendly.
Henry Manne - Dean, George Mason Law School. Board of

Governors, Israel Center for Social and Economic Progress.
Member, American Hospital Association Medical Malpractice Task
Force. Books include The Modern Corporation and Social
Responsibility.
Paul Marcus - Dean, University of Arizona Law School. Books

include The Prosecution and Defense of Conspiracy Cases.
James McCall - Professor, Hastings Law School. Deputy Attorney

General, State of California (1969-1971). Member, California
Attorney General's Consumer Protection Task Force (1972-1978).
Fred McChesney - Associate Professor, Emory Law School.

Associate Director, Federal Trade Commission (1981-1983).
Michael McConnell - Assistant Professor, University of Chicago

Law School. Former law clerk to Justice William Brennan.
Assistant to the Solicitor General, United States Department of
Justice (1983-1985).
John Meehan - Professor and Chairman of the Admissions Committee,

Brooklyn Law School.
Bernard Meltzer - Distinguished Service Professor Emeritus,

University of Chicago Law School. Trial Counsel, Nuremberg War
Trials (1945-1946). Books include Labor Law: Cases. Materials,
and Problems.
Wallace Mendelson - Professor of Public Law, University of

Texas. Former law clerk to Justice Felix Frankfurter. Editor-
in-Chief, Report of the U.S. Commission on Civil Rights (1961).
Editor, Felix Frankfurter, a Tribute.
Henry P. Monaghan - Thomas M. Macioce Professor, Columbia Law

School.
Thomas Morgan - Distinguished Professor, Emory Law School. Dean,

Emory Law School (1980-1985). Consultant, Administrative
Conference of the United States (1975-1980).
Robert Mundheim - Dean and University Professor, University of

Pennsylvania Law School. General Counsel of the Treasury
Department under President Carter. Director, Securities
Investors Protection Program (1977-1980).
Robert Nagel - Professor, Colorado Law School. Deputy Attorney

General, Pennsylvania Department of Justice (1972-1975).
Phil Neal - Harry A. Bigelow Professor Emeritus, University of

Chicago Law School. Dean, University of Chicago Law School
(1963-1975). Partner, Friedman and Konen, Chicago.
Daniel Polsby - Professor and Chairman of the Admissions

Committee, Northwestern Law School.
412
William Powers - Judge Benjamin Harrison Powell Professor and

Associate Dean, University of Texas Law School.
George Priest - John M. Olin Professor, Yale Law School.
William Reppy - Professor, Duke Law School. Former law clerk to
Justice William 0. Douglas. Books include Community Property in
the United States.
Robert Riggs - Professor, Brigham Young University Law School.
Board of Trustees, Utah Legal Services Corporation (1978-1982).
Books include US/UN; Foreign Policy and International
Organization.
Charles Rogovin - Professor, Temple Law School. Administrator,
Law Enforcement Assistance Administration (1969-1970).
President, Polce Foundation (1970-1972). Consultant, Senate
Watergate Committee (1973-1974). Commissioner, President's
Commission on Organized Crime (1983-1987).
Eugene Rostow - Sterling Professor of Law and Public Affairs
Emeritus, Yale Law School. Former Dean, Yale Law School (1955-
1965) . Undersecretary of State for Political Affairs under
President Lyndon Johnson. Director, U.S. Arms Control and
Disarmament Agency (1981-1983).
Ronald Rotunda - Professor, University of Illinois Law School.
Assistant Majority Counsel to the Senate Watergate Committee.
(1973-1974). Co-author of the Treatise on Constitutional Law.
Terrance Sandalow - Dean, University of Michigan Law School
(1978-1987). Former law clerk to Justice Harold Burton and to
Justice Potter Stewart.
David Schoenbrod - Professor, New York Law School. Marshall
Scholar. Attorney, Natural Resources Defense Council (1972-
1979) . Co-author, Electric Power and the Environment. Board of
Advisors, Center for Governmental Responsibility (1976-1981).
Hal Scott - Professor, Harvard Law School. Former law clerk to
Justice Byron White. President, International Academy of
Consumer & Commercial Law.
Robert Scott - Lewis Powell Professor, University of Virginia Law
School. Attorney General's Task Force on Welfare Reform (1973-
1974) .
Michael Sharlot - Wright C. Morrow Professor of Criminal Law, and
Associate Dean, University of Texas Law School. General Counsel
of the Peace Corps under President Johnson.
John Slain - Professor, New York University Law School. Board of
Directors, Indianapolis Legal Services Organization (1966-1971).
Board of Directors, Ohio Catholic Charities (1975-1977).
Michael Smith - Professor, University of California at Berkeley
Law School. Former law clerk to Chief Justice Earl Warren.
Bertel Sparks - Professor, Duke Law School. Consultant to the
Senate Subcommittee on Constitutional Rights (1966). National
Conference of Bar Examiners (since 1970).
Paul Stephan - Professor, University of Virginia Law School.
Former law clerk to Justice Lewis Powell. Director, Forum for
U.S.-Soviet Dialogue.
Stewart Sterk - Professor, Cardozo Law School. Former law clerk
to Judge Charles Breitel.
Richard Stewart - Byrne Professor, Harvard Law School. Former
law clerk to Justice Potter Stewart. Special Counsel, Senate
Select Committee on Presidential Campaign Activities (1973).
Board of Trustees, Environmental Defense Fund.
413
Frank Strong - Cary C. Boshamer Distinguished Professor of Law,

Emeritus, University of North Carolina Law School. Former
Dean, Ohio State Law School. President, Association of American
Law Schools (1960).
Jan Ting - Professor, Temple Law School. Author, An American In

China. Board of Governors, East-West Center.
David Trager - Dean and Professor, Brooklyn Law School. U.S.

Attorney for the Eastern District of New York (1974-1978).
Chairman, Mayor's Committee on the Judiciary (since 1982).
Basile Uddo - Professor, Loyola Law School. , Board of Directors,

Legal Services Corporation.
William Valente - Professor, Villanova Law School. Books

include Law in the Schools.
Lynn Wardle - Professor, Brigham Young University Law School.

Former law clerk to Judge John J. Sirica. Books include The
Abortion Privacy Doctrine.
Olin Wellborn - William Liedthe Professor, University of Texas

Law School.
James J. White - Robert A. Sullivan Professor, University of

Michigan Law School.
Scott Whitney - Professor, George Mason Law School. Vice

President, American Airlines (1959-1964). Advisor to the U.S.
Office of Technology Assessment (1972-1977) and to the World
Wilderness Congress (1972-1977).
Nicholas Wolfson - Professor, University of Connecticut School of

Law. Chairman, ABA Legal Education Committee. Books include The
Modern Corporation.
Winton Woods - Professor, University of Arizona Law School.

National Endowment for the Humanities (Fellow, 1973). Author of
Introduction to Legal Process and Resolution of Dispute.
414
The CHAIRMAN. The Senator has about 8 or 10 minutes left.
Senator GRASSLEY. Thank you. You are right, Senator.
Judge Bork, this morning Senator DeConcini was questioning
you about the Finzer v. Barry case, and I would like to follow up on
that. My reason for following up on that is because I sponsored leg-
islation on that subject last year, along with Senator DeConcini, to
repeal the 1938 District of Columbia ordinance barring political
protests within 500 feet of a foreign embassy. I opposed this law be-
cause I think it is overly broad, and it infringes upon some of our
basic civil rights, the first amendment freedoms of speech and as-
sembly. And even worse, Judge, I think it has been a law that has
been selectively enforced.
Judge BORK. May I say, Senatorbecause that is a good point
there was no allegation of selective enforcement in Finzer v. Barry.
Senator GRASSLEY. There was not?
Judge BORK. NO. Nobody attacked the law on grounds of selective
enforcement. That would have produced a different case.
Senator GRASSLEY. Okay. Well, at this point, because of congres-
sional action last year, we have been promised by the District of
Columbia Government that it will consider changing the 500-foot
rule. I hope they will come around to favoring the free speech point
of view.
Now, last year, you authored this opinion which upheld the con-
stitutionality of the ordinance as challenged by a group of protes-
tors who were arrested in front of the Soviet and Nicaraguan Em-
bassies.
I am not going to ask you to go into the rationale of upholding it,
because I think that would be repetitive. But I think I need to say
to you that I disagree with you in this case. I think the statute is
over-broad. For exampleand this is what I really resent as far as
the District law is concernedin 1972, Congress passed a statute
that prohibits demonstrations within 100 feet of an embassy. This
statute also covers consulates in cities in the United States, and
even the United Nations' complex. The 100-foot rule, then, works
without any dangeror, let me put it this wayI feel it protects
foreign officials adequately.
I am prepared to wait for a decision of the D.C. City Council as
they revisit this issue. However, but I would like to assume, if I
could, that you would have no problem upholding a local statute
that was more in line with the Federal law in this area.
Judge BORK. Oh, no. Nothing in this opinion suggests that the
protection has to be as much as it is or as little as it is. This opin-
ion merely says that for the reasons given, I think this law is con-
stitutional. But that does not mean you have to have that law. It is
for Congress, or in the first instance, the City Council, to decide
what law satisfies the requirements of the law of nations. And I do
not know that a court has any power to say you have to have a
more severe lawnot at all. That is a power given to Congress by
article I.
Senator GRASSLEY. Judge Bork, this morning you cited the Su-
preme Court's Chadha case, which struck down a version of the
legislative veto. My interest in the legislative veto has been long-
term in the 12 years I have been in Congressmaking greater use
of it, preserving it. I do not like the Chadha case. I have to live
415
with it. Senator Levin and others and I have ways we feel that we
can make the legislative veto constitutional.
We feel that the legislative veto is vital to Congress' ability to
put the brakes on a runaway and faceless bureaucracy. And some-
times, as you deal with in the courts, you know that bureaucracy
can run over the rights of people.
I am not looking for an advisory opinion now, Judge. But what if
Congress would enact a legislative veto that provides (1) bicameral
passage and (2) presentment to the President? Isn't that about all
that Chadha would require for a legislative veto to be constitution-
al?
Judge BORK. Offhand, I really should not talk about that, Sena-
tor, because I might get a case like that on either court I am on.
But certainly, those are two elements that Chadha discusseslack
of presentment and the lack of bicameral legislation. I forget
whether there are additional ones, and I do not want to pass on the
constitutionality of what you propose here.
Senator GRASSLEY. Okay. Well, let us just say from your perspec-
tive, serving on the D.C. Circuit, you have occasion to review many
decisions by regulatory agencies. So I am wondering if that per-
spectiveseeing what agencies do, how they do it, how some of
what they do is contrary to the intent of Congressbecause I think
the courts give great deference to thatdoes that give you any
philosophical position on the concept of legislative veto, if you
could speak generally to that point?
Judge BORK. Well, I think all I can say is that the subjects of the
delegation of discretion or power to agencies and the subject of the
legislative veto are closely connected philosophically or politically
or however you want to put it, so that I understand the motivation
for the legislative veto, but I would also think that narrower or
more structured delegations to bureaucracies, to agencies, might
also address the problem you are concerned about.
Senator GRASSLEY. Well, what about considering the 20th century
problem of legislating in a lot of very technical areas in which,
maybe the Congress does not have enough expertise. It just seems
to me that the courts ought to take into consideration that the
times demand some delegationby the Congress to agenciesof
the details of statues, while still allowing for the retention, by Con-
gress, of some control over this process?
Judge BORK. Yes. Of course, the more Congress lays down in the
delegation the criteria to be followed by the agency, the easier it is
for a court to review the agency and keep the agency within
bounds. But if the delegation is unstructured and sort of open, a
court has a very difficult time reviewing it, and only Congress can
provide a cure.
Senator GRASSLEY. Well, my time is up. I guess I would just say
in closing on that point, that I think you have asked us to consider
that times have changed during the period that you have been
writing and expressing your viewsregarding your overall philoso-
phy of giving deference to the legislative processbecause the
place where democracy is best exercised is in the parliamentary
bodies. I would, in turn, ask you to consider our changing circum-
stances and the limits of what the modern Congress can do through
416
statute; that Congress cannot write laws as technically correct as
you have described during this discussion today.
Judge BORK. I agree there is a problem, Senator.
The CHAIRMAN. Thank you, we will now take a 5-minute recess.
[Brief recess]
The CHAIRMAN. There will be order in the chamber, please.
Judge, in terms of the rest of the day, Senator Leahy is next.
Senator Specter is back, and I am trying to accommodate one of
our colleagues who cannot be here. I hope we only have to go two
more; at the most, we will go three more.
The CHAIRMAN. Senator Leahy.
Senator LEAHY. Thank you, Mr. Chairman. Judge Bork, I had
said yesterday I wanted to follow up with some of the questions I
had asked you on free speech. Before I do, I want to make sure I
understand a couple of points that have been covered here.
You have talked about the Finzer case with Senator Grassley
and Senator DeConcini, and a number of your supporters have
stated that in 400 cases you have not been reversed, and have left
the implication you have had 400 cases go up on appeal. You have
not done that, sir, but a number of your supporters have. Just so
we can note for the record, the Finzer case is the only majority
opinion that you have written that has gone up on appeal to the
Supreme Court, is that correct?
Judge BORK. I don't know, Senator, I hadn't kept count that way.
It could well be correct.
Senator LEAHY. I believe it is. At this point cert, has been grant-
ed, but the case has not been decided by the Supreme Court.
Judge BORK. That's correct, Senator. It has not been argued yet.
Senator LEAHY. And if you were to serve on the Supreme Court,
you would not be able to sit on that case anyway.
Judge BORK. Oh, no, of course not. Any matter I touched in any
way on the Court of Appeals I would recuse myself on the Supreme
Court.
Senator LEAHY. And I mention that just to clarify that you can
take a little bit more liberty in talking about it. As I understand
the Finzer case, that involved a statute, as you said, passed by Con-
gress, which says basically that if you are going to have somebody
demonstrating within 500 feet of an embassy, they can do that only
if their demonstration is favorable to the policies of that govern-
ment. Is that, in laymen's language, basically what it says?
Judge BORK. Well, in laymen's language, that's right; it says you
may notlet me see if I can find it. The congregation aspectyou
may not congregate within 500 feet for any purpose; and the first
part of the statute, it's unlawful to display any placard designed to
bring into public odium any foreign government or to bring into
public disrepute political, social, economic acts of any foreign gov-
ernment, that's right.
Senator LEAHY. YOU could, however, display a placard which was
supportive of that government.
Senator LEAHY. It's interesting, because really what you do with
such a statute is an unusual twist. Let's just useand I am not
asking you for some kind of a declaratory judgment on thisbut
417
let's take a hypothetical: we have the embassy of Iraq, and after
the Iraq air force had nearly destroyed the U.S.S. STARK, killing
more than 30 Americans, according to that statute you could have
somebody down there with a placard saying to the Iraqi Govern-
ment we agree with everything you did, right on. But if the mother
or father of one of those sailors killed wanted to stand down there
with a placard and say we think this was a heinous, murderous act,
they couldn't do it.
Judge BORK. Under the statute, that is correct.
Senator LEAHY. In some waysand I realize this matter is up
before the Supreme Court, and they will have to decide itin some
ways I would find that virtually unconstitutional on its face in al-
lowing one type of speech but not the other. It would be one thing
to say for security you don't allow people to congregate within a
certain distance of an embassyand I can understand that.
Judge BORK. That's right. I dealt with that point in the opinion
I guess I better not argue it further. But, of course, Congress is
free, I supposeI'm not passing on the constitutionality again of a
hypothetical statutebut Congress would certainly be free now or
any other time to say no expression of opinion about a foreign gov-
ernment may be had within 200 feet, 300 feet, whatever.
Senator LEAHY. Wouldn't that be more acceptable than to say
you can have one kind but not the other, and tell Americans that
they can say one sort of thing about a foreign government but not
something else on our soil?
Judge BORK. Americans can say anything they want to about
Iraq, anything hostile they want to say about Iraq or any other for-
eign government, or this government, the U.S. Governmentjust
not within 500 feet of the embassy of that government. But the rest
of the country .
Senator LEAHY. The point I make concerns me very much. In a
court upholding a statute which says to Americans you can certain
things but not other things. It's one thing to say you can't say any-
thing within a certain distance; but to say you can say some things
but not other thingsthat I find of great concern.
Judge BORK. It is a matter of concern, I agree with you about
thatand I tried to deal with that concern. In a way, saying you
may not say anything is a more restrictive statute than saying you
may not insult a foreign government.
Senator LEAHY. I find more chilling to say that we will select
what can be said. But leave that be, we'll go up on appeal, and
we'll see how the eight members decide it.
Let me talk about another area, though. We are both lawyers,
and I consider that an honorable profession. I know you do. The
proud tradition of pro bono workcertainly that was the thing
stressed to me in the first law firm I went to after I left George-
town and went back home. That tradition wasn't always observed,
but it should be, because it's more than a traditionit s an obliga-
tion. The Judiciary Committee asks every single nominee for any
federal court position, from the U.S. Claims Court to the Supreme
Court, how they have fulfilled that obligation.
Let me read the question we asked you, and your answer. The
question says: "An ethical consideration under Canon 2 of the
American Bar Association's Code of Professional Responsibility
418
calls for every lawyer, regardless of professional prominence or pro-
fessional workload, to find some time to participate in serving the
disadvantaged. Describe what you, Judge Bork, have done to fulfill
these responsibilities, listing specific instances, the amount of time
devoted to each."
And you responded: "During my time in practice, 1954-
1962 . . ."in other words, 8 years"the firms I worked for did
not engage in pro bono activities. While I was a professor at Yale I
was not a member of the Connecticut Bar and cases of this sort
were handled by teachers and students in the clinical legal educa-
tion program."
What we asked you was what you have done to make legal serv-
ices available to the disadvantaged. I read that answer as saying
that you found ways why you didn't fulfill the obligation. Now, in
1955-1962, you were an associate, then a partner at Kirkland and
Ellisthat's one of the finest law firms in this country. You say
the firm did not engage in pro bono activities.
I find that hard to believe. I can't believe in that whole firm
people didn't engage in pro bono activities.
Judge BORK. There may have beenI didn't know of any.
Senator LEAHY. But you didn't.
Judge BORK. I didn't, and the firm had no program for pro bono
activities, and, to tell you the truth, the younger people in the firm
were worked very hard, and I remember I gave a speech and a
senior partner complained about the billing hours I didn't get be-
cause I was giving a speech. I don't think the attitude towards
these things was then what it is now. I think a lot of firms have
pro bono programs now who didn't then.
Senator LEAHY. I became a lawyer in 1964, and I know the firm I
went to, a small firm, had followed the tradition of most of the
firms in my own State for years and years before that of pro bono
work. Every law firm that sought to hire me in Washington at that
same time told me of their tradition for years before of pro bono
work. There was nothing to stop you from doing pro bono work,
was there?
Judge BORK. NO, I suppose I could have asked for time to do it.
Senator LEAHY. Are you proud of the fact that you didn't do any
pro bono work?
Judge BORK. NO, I didn't, I'm not proud of it. The things I spe-
cialized in would not have been very useful in pro bono workI
would have had to learn a new area of law. But that's not an
excuse for not doing it.
Senator LEAHY. Let me ask you about that. You are an expert in
constitutional law.
Judge BORK. When I was in the firm, I didn't do any constitu-
tional law; I was doing major litigation, which means two-thirds of
it was antitrust law, and other forms of litigation that were pro-
tracted and expensive. I had no contact with constitutional law
until I began to teach it.
Senator LEAHY. Judge Bork, you are acknowledged by every one
of us here as a brilliant lawyer. You don't think that those talents
could have been brought to bear somewhere in pro bono work?
419
Judge BORK. Oh, yes, they could have been. I didn't mean to say
that. I just said that the fields I was working in did not lend them-
selves to it, and I didn't think about itand I should have.
Senator LEAHY. The reason I ask these questionsI look back
over what you have done and I have to think about what Senator
Simpson said at the beginning of this about how the average
lawyer deals with real people, he sees somebody where they are
going through a divorce or a criminal matter, the anguish and all
of an individual. These people also get to the Supreme Court. Why
should we not be concerned that your whole legal career has been
isolated from that kind of reality?
Judge BORK. Oh, I have dealt with that kind of reality in various
cases; I just didn't do pro bono work. I see this kind of a case on
the bench; I saw that kind of a case when I was Solicitor General. I
didn't do pro bono work when I was at the firm.
Senator LEAHY. Your most significant clients are, what, General
Motors, General Atomic, Shell Oil? These are huge corporations.
Judge BORK. Oh, I had clients like the local distributora local
distributor of electronic products in New Haven who was having
trouble with a major corporation. I gave them an antitrust com-
plaint on his behalf, and they came back and settled.
Senator LEAHY. Let me ask you about the time you were at Yale.
Judge BORK. That was while I was at Yale.
Senator LEAHY. Let me go on that. How much pro bono work did
you do when you were at Yale?
Judge BORK. I didn't do any pro bono work at Yale, Senator.
Senator LEAHY. Again, why not?
Judge BORK. I just didn't think about. We had this whole clinical
legal studies program which did all of that, and very few professors
had anything to do with that program except to establish it and to
have a member of the faculty run it.
Senator LEAHY. Prior to going to Yale, you had not had involve-
ment with constitutional law, but at Yale you did.
Judge BORK. That's right.
Senator LEAHY. YOU were an expert, you taught constitutional
law.
Judge BORK. Correct.
Senator LEAHY. Over and over again, in the kind of pro bono
matters, especially involving indigent defendants, others, we see
constitutional issues. Were you ever asked when you were at Yale
to help out in any of these?
Judge BORK. NO, I was never approach for pro bono work.
Senator LEAHY. YOU never volunteered your own expertise as a
constitutional authority for pro bono work?
Judge BORK. NO.
The CHAIRMAN. Senator, I think he's answered that question.
Senator LEAHY. Let me ask you this question. Was it because you
did not have time, the inclination, or were not asked?
Judge BORK. TO tell you the truth, Senator, I was not asked, and
I was busy working on other things and I didn't think about it. I
should have thought about it. I didn't. I assume that our clinical
legal program, if they thought I had something of use to them,
would have asked me.
Senator LEAHY. It's not a matter of time.
420
Judge BORK. No, you can always stop doing one thing and do an-
other thing.
Senator LEAHY. Let me go back to your testimony yesterday. I
said I'd follow up on this. You discussed your past writings and
your current views on issues of free speech, and you were sharply
criticalas a number of us have pointed out, and you haveof a
wide range of doctrines which the Supreme Court has employed to
protect the rights of Americans to say what they want to say. Now,
yesterday, though, in answer to my questions, you described your
current views as much closer to the idea of free speech that the Su-
preme Court has applied over the past 30 or 40 years.
Judge BORK. Well, let meI'm sorry, you weren't finished with
the question?
Senator LEAHY. That's all right.
Judge BORK. What I said yesterday, I hope, and what I said this
morning was that in a variety of areas, had the legal theories I es-
poused, had the law developed along those linesI'm not talking
about the political speech doctrine or idea nowI could have ac-
cepted it. For example, I talked about Brandenburg v. Ohio, and
what I saidand we are talking there about the advocacy of law
violation. Now, I want to take out of this discussion the Martin
Luther King kind of problem where often Mr. King was advocating
violating a law in order to test its constitutionalityI have no
problem with that. I am talking about the advocacy of law viola-
tion which is not aimed at framing a constitutional test. The differ-
ence between what I said and what Brandenburg said is this: Bran-
denburg requires a closer nexus, a closer connection, between the
advocacy and the lawless action than I did. For example, I thought,
for a variety of reasons, that one might constitutionally punish ad-
vocacy of law violation, even if the violation wasn't imminent.
Brandenburg added to that only the qualification that the law vio-
lation must be imminent when the speaker speaks.
Now, I could have accepted the law if it had developed in the
way I suggested, but I can also Brandenburg in the way the law did
develop.
Senator LEAHY. And yesterday, in answer to my question, you
did accept Brandenburg, but prior to that, in all your published
statements anyway, you had not.
Judge BORK. That's right. And this isn't a great change of mine.
As I say, I could have accepted the law as I suggested, but I accept
the fact that the Supreme Court has added an additional safeguard
for free speech advocating lawlessness, and, as an academic, I
didn't think that theoretically justified; as a judge, I accept it. And
that's all there really is to that.
Senator LEAHY. Brandenburg, of course, was decided in 1969.
Your Indiana Law Review article, which pretty well rejects it, was
in 1971.
Judge BORK. Yes.
Senator LEAHY. And I want to go back again to some of your
statements, because I want to find out just where the changes take
place and what it is that jogged those kinds of changes. I had asked
you how far you had gone from the bright-line distinction between
political and non-political speech by 1973, when you testified on the
subject before the committee in your confirmation hearings for So-
421
licitor General, and that is when you said you were about where
the Supreme Court currently is. But let me go over some of your
writings and statements after 1973.
In 1979, in your speech on the first amendment at the University
of Michigan, you said that
The transmission of news and information relevant to the political process should
be protected by the first amendment.
And all of us can be happy about that, and the news media here I
am sure are. But you went on to say
There is no occasion on this rationale to throw a constitutional protection around
forms of expression that do not directly feed the democratic process. It is sometimes
said that works of art are capable of influencing political attitudes. But in these in-
direct and relatively remote relationships of the political process, verbal or visual
expression does not differ at all from other human activities such as sports or busi-
ness, which are also capable of influencing political attitudes, but which are not on
that account immune from regulation.
Now, do you still believe that only those forms of expression that
directly feed the democratic process should receive first amend-
ment protection?
Judge BORK. May I have the page, please, Senator? I just got the
speech in front of me.
Senator LEAHY. It's on pages 8 to 9.
Judge BORK. Well, the transmission of news and information rel-
evant to the political process includes a great deal of speech that is
not political obviouslyand I have discussed this. It includes moral
discourse, social discourse, scientific discourse, and, as I said in one
of these speeches, fiction. And I said there is no occasion on this
rationale to throw constitutional protection around forms of ex-
pression that do not directly feed the democratic process.
That's right; on that rationale they don't. And I think I could
stillif I were starting back, before any decisions of the Supreme
Court, and trying to work out a theory of the first amendment, I
suppose I would have worked out a theory about those kinds of
things that affect political ideas. Now, as a friend of mine remind-
ed me a couple of weeks ago, if you read "The Tropic of Capricorn"
by Henry Miller, you find a lot of stuff in there that is really politi-
calcriticism of the establishment and so forth. So that those
things would be protected.
Now, I don't know where I would come out if I sat down now in
the absence of Supreme Court precedent and worked out a theory
of the first amendmentI don't know where the line would be
drawn.
But what I did say is that the Supreme Court has decided a lot of
things which I can accept and do accept as law, and have no desire
to change.
Senator LEAHY. Are you saying that today it does not have to di-
rectly feed the democratic process to be immune from regulation?
Judge BORK. That is what the law is, and I accept that law.
Under current Supreme Court law, if the Government tries to
suppress a book, and that action is challenged, does the Court have
to examine the book to determine its relationship to the political
process in order to decide whether the book receives first amend-
ment protection?
422
I don't think so, Senator. I think under current law the Court
has to examine the book to see whether it is obscene in the way
that the Supreme Court has defined it.
Senator LEAHY. Let's assume that the allegation of obscenity is
not made. Then is the relationship to the political process irrele-
vant to the question of whether government could ban the publica-
tion?
Judge BORK. Under current law it is and it is law I accept.
Senator LEAHY. What about a motion picture? If the government
tries to ban it and it is not obscene, does it make any difference
whether its content relates to the political process?
Judge BORK. NO. Under current law, it does not. I think any form
of expression nowif it's not obsceneI think the Supreme Court
protects.
Senator LEAHY. What about a painting or a photograph?
Senator LEAHY. What about an article in a scientific journal?
Judge BORK. Oh, clearly.
Senator LEAHY. In other words, if a government tried to prevent
its publication but it is not obscene, it doesn't make any difference
whether the content relates to the political process.
Judge BORK. That is the law and it is law I accept.
Senator LEAHY. DO you think it should make any difference?
Judge BORK. NO, I don't think it does because if you start from
the political process core of the first amendment, and I should say,
although I have now lost it, everybody accepts the fact that the
first amendment starts from a political process core, and I've men-
tioned Harry Kalven and Meiklejohn.
In Garrison v. Louisiana, Justice Brennan talks about this core.
For speech concerning public affairs is more than self-expression. It
is the essence of self-government, and that is where everybody
starts from, but that has moved out now to all forms of self-expres-
sion that are not obscene.
Now, I suppose if I went back and rethought the doctrine, which
I really haven't rethought since 1971 except to give up on the 1971
bright line, if I went back and rethought it, I would suppose that
among other things, it would place too great a burden upon courts
to sit down and ask whether this thing feeds the democratic proc-
ess.
Senator LEAHY. Should that kind of a question of burdenif
we're really dealing with a constitutional issueshould that be
that overriding?
Judge BORK. It certainly is important, Senator. You will find
that, for example, in the political question doctrine, courts will not
sometimes get into what looks like a constitutional issue if they
think there are not standards for them to apply that are suitable
for judicial application. And I think that is right. Particularly, in
this case, applying the political process core and moving out, it
would seem to me better, just in terms of freedom and in terms of
making the tasks of the courts doable, to place obscenity off limits
and protest the rest.
That does not mean that philosophically a different line might
not be drawn if you ignore other considerations. But I have no
desire to impose a philosophical view which I do not now have.
423
Senator LEAHY. If the Government were to try to punish some-

body speaking, if the speech is not obscene, does the first amend-
ment protection depend upon whether the speech is related to po-
litical matters?
Judge BORK. No. I think that is thoroughly settled. We are talk-
ing about a thoroughly settled body of case law.
Senator LEAHY. Let me show you a couple of books. I am not
really trying to plug anybody here, but the one on the right is
Speaker O'Neill's latest book. It is number "n" or something on the
best seller list.
A capsule description, the Post says: "The former Speaker of the
House recounts half a century in public life as a bread-and-butter
liberal." The other is on the nonfiction paperback best seller list,
"Fatherhood" by Bill Cosby. It is described in the reviews as an
actor on the subject of children.
Now, let's assume neither book is obscene.
Judge BORK. I am willing to assume that, Senator.
Senator LEAHY. I have not read either one of them, but I will
assume that, too. Does it make any difference in first amendment
protectionI mean the fact that this one is obviously politicalthe
excerpts I have read are very politicaland this one of Mr.
Cosby's, I assume, is notthat does not make any difference, does
it?
Judge BORK. Under settled law it does not and I accept it. It
seems to me that the settled law is now that the person writing the
book does not have to prove that it is political or any way connect-
ed to politics. The settled law is the Government has to prove it is
obscene.
Senator LEAHY. SO if we were dealing withat least by the title
of itsomething, a movie, on the one hand, "The Making of the
Constitution," and the other one, "Revenge of the Nerds," at least
by the title it does not make any difference?
Judge BORK. NO. That does make any difference, and I have seen
so many movies about the Constitution that I would now choose
the second movie. [Laughter.]
Senator LEAHY. NOW, the reason I am asking so many of these
questions, Judge Bork, is that I am concerned. I do not want this
an expression I have usedbeing a confirmation conversion. That
is going to be a question in the minds of a number and that is why
I am going into such detail.
You have a 1987 statement calling for a case-by-case review of
these matters to consider where they go in the political process.
Judge BORK. May I know what that is, Senator?
Senator LEAHY. May 28th, 19871 did not realize I had it here in
my bookit was a Bill Moyers interview. In fact, I asked them for
the transcript. Let me read down the partI would be happy to
give it to youbut the part that I am relying on, Mr. Moyers said,
speaking to you, "Do you think they were dealing primarily, at
least in their"speaking of free speech"at least in their frame of
things, with the speech of the republic, the speech of the political
universe that we operate in as citizens,"speaking of those writing
the Constitution.
You answered,
424
Sure, but in addition to that I am sure they recognized that other kinds of
speechspeech about moral issues, speech about moral values, religion and so
forthall of those things feed into the way we govern ourselves, so it does not have
to be explicitly political speech to be protected.
MOYERS. So novels.
"BORK. Scientific speech.
MOYERS. Art.
BORK. "I think you are getting towards the outer edge there and where you draw
the line would be a case-by-case basis."
So you have gone actually beyond that today.
Judge BORK. NO. When you get to art you may be into the area
of pornography and obscenity.
Senator LEAHY. IS that what you meant?
Judge BORK. I think so, yes.
Senator LEAHY. That is the only thing?
Judge BORK. Senator, let me speak to this issue of confirmation
conversions. I have got a lot of positions that I have taken in the
past that I have reaffirmed here which I have not converted. On
this issue I do not know where I would draw the line as an original
matter under the first amendment. I have not rethought that
whole thing and there would be a lot of arguments both ways.
It is not an original matter. We now have an enormous body of
case law which is well settled and should not be overturned or
should not be cut back. It is there. I mean, if there is any body of
case law that is massive and solid, it is that body of case law.
Senator LEAHY. I agree with you. But the reason I asked you the
question and your first very strong statement that we referred to
the Indiana Law Review articlewas 2 years after the Branden-
burg case. And that is why many of us felt it was well settled then.
Judge BORK. Well, let me address that then, Senator. Back then I
was speaking as a theorist about what the courts had a right to
force upon legislatures by way of free speech. And it seemed to me
that the judgment of whether or not to allow speech that called for
the overthrow of the government, or violence, was really a matter
of prudence. That kind of speech does not feed the way we govern
ourselves very well.
Therefore, I questioned whether or notit seemed to me that
that prudential decision might well be left to the legislature. The
law did not develop that way. It developed otherwise and an addi-
tional safeguard was added by the Supreme Courtthat is, the ne-
cessity of showing the imminence of lawless action.
I am not sure that if I sat down and argued it theoretically I
would not criticize Brandenburg again. But it is a settled position
and I accept it.
Senator LEAHY. But on June 10th of this year, just a month
before the President nominated you, you said even then that a
judge has to decide whether a work of art or literature falls on one
side or another of a wavering line between speech that has some
relationship to the political process and speech that does not and
only then can a judge decide whether work is protected by the first
amendment.
Judge BORK. Where was this? Oh, this is Moyers?
Senator LEAHY. Well, this, I believe, is your Worldnet interview
that has been referred to earlier here today.
425
Judge BORK. May I see it, please? Do we have it? Wait, somebody
gave it to me in the morning and I have now lost it.
Senator LEAHY. Page 26.
Judge BORK. I have now lost it. It is in another room. Well, that
is certainly not the law. That was a back and forth over a satellite
hookup and that iswait a minute, Senator. I think what I said
was a little better.
I said, "I am afraid the judge has to draw a line. It may be a
wavering line." And that is true. As you go case-by-case you are
going to get a wavering line. There is no escaping that in matters
of human judgment.
It may be that wherever he draws it you can point out that it could have moved
somewhere else along the spectrum.
That is always true.
Clearly, as you get into art and literature, particularly into forms of art, and if
you want to call it literature and art, which are pornography and things approach-
ing it, you are dealing with something now that is not in anyway and form the way
we govern ourselves and in fact may be quite deleterious. I would doubt that courts
ought to throw protection around that.
Senator LEAHY. Judge, that was not the question. The question
wasit was not on pornography. It was on, can one really separate
those forms of self-expression that feed into what you call the dis-
course in a free society, from political speech or from the formation
of a climate of opinions? Can you really draw borders there? And
that is when you said you would draw a line, albeit possibly a wa-
vering line.
Judge BORK. Well, but I then gave an illustration, and my illus-
tration was art and literature which is pornography or approaches
pornography. That is the only illustration I gave of where you get
into the line.
Senator LEAHY. Well, your view of June 10th is your view of Sep-
tember 17th?
Judge BORK. Yes.
Senator LEAHY. Okay.
Judge BORK. If I sat down to write it, I would express it rather
more clearly, but what it says is, when you get to literature and art
which is really pornography, then you are dealing with something
now where you draw a line.
Senator LEAHY. Let me ask you about another free speech con-
cept. Just one question. That is the idea that a local community
would have the right to suppress speech that does not meet the
legal test of obscenity on the grounds that the speech is harmful to
the community moral standards.
Judge BORK. Where is this, Senator?
Senator LEAHY. Well, in your 1979 University of Michigan speech
on page 15.
Judge BORK. Yes. Well, on page 15 I am talking about a taste for
pornography and I was making a distinction. I said,
The court and some judges do tend to assume that it is not a problem if willing
adults indulge a taste for pornography in a theatre whose outside advertising does
not offend the squeamish.
I said:
426
The assumption is wrong. The consequences of such private indulgence may have
public consequences far more unpleasant than industrial pollution. The attitudes,
taste and moral values inculcated do not stay behind in the theatre. A change in
moral environment and social attitudes towards sex, marriage, duties toward chil-
dren and the like may as surely be felt as harm as the possibility of physical vio-
lence.
And I was complaining that the Court has not explained what
the public feels to be harm in that way may not be counted as one.
But again, I am talking about pornography.
Senator LEAHY. Pornography or obscenity as we use it in the
legal term?
Judge BORK. Yes.
Senator LEAHY. Both are the same, or are you using the terms
interchangeably?
Judge BORK. Well, I have been using them interchangeably.
Probably I should not. But obscenity. All right.
Senator LEAHY. I understand my time is up. I also understand we
have a vote on.
The CHAIRMAN. We have 7 minutes left in the vote. When we
come back we will start with
Senator HUMPHREY. Mr. Chairman, I wonder if by prior agree-
ment already reached between Senator Specter and me and you I
might have 2 minutes at this point. Are you planning to recess at
this juncture?
The CHAIRMAN. I was, but if it is 2 minutes, fire away.
Senator HUMPHREY. It is timely. I thank the Senator from Penn-
sylvania for yielding to me for this purpose.
I want to correct the mistaken impression which was left by the
line of questioning pursued by the Senator from Vermont on the
subject of pro bono service. Let me ask the Judge these quick ques-
tions.
How many years did you serve in the Marine Corps, Judge?
Judge BORK. I guess a total of three and a half or four, some-
thing like that.
Senator HUMPHREY. All right. Let's round it off to four. How
many years did you teach at Yale in total?
Judge BORK. Fifteen years.
Senator HUMPHREY. And how many years did you serve as a So-
licitor General?
Judge BORK. A little over three and a half, almost four.
Senator HUMPHREY. YOU have been 5 years, five and a half on
the Circuit Court?
Judge BORK. Five and a half on the Circuit Court.
Senator HUMPHREY. That is 28 years during which time this man
has chosen not to devote himself to lucrative private law practice
at which he could have by now become a multi, multimillionaire.
None of us in this panel doubt it.
We are not talking about a man who is coming to us from 30
years of private practice where he has made a lot of money. We are
talking about a man who has sacrificed for himself and his family
so that he could serve in the role of teacher and serve in the role of
public service. For someone to say that someone who has devoted
himself for 28 years selflessly to teaching and to public service at
427
the sacrifice of his family, for anyone to suggest that he has not
given a good part of his life in pro bono service is ridiculous.
Now, I know the Senator from Vermont did not mean that in a
mean spirit. I think he said it in a mistaken spirit, but I wanted to
correct the record because I think that is an outrageous impression
to try to create.
Senator LEAHY. Mr. Chairman?
The CHAIRMAN. Yes.
Senator LEAHY. Judge Bork, I just want to ask you, according to
the report you gave to us, you spoke of yourand I realize that you
have sacrificed to be a Solicitor General just as Members sacrifice
to be herebut if I am correct in reading your report to this com-
mittee, and something that perhaps the Senator from New Hamp-
shire has not had a chance to read, that in 1979, assuming your
consultant work at $175 an hour, you made approximately $197,000
that year for consulting work; in 1980, assuming $225 an hour,
around $250,000 to $300,000 a year for consulting work; in 1981, as-
suming $225 an hour and leaving Yale about mid-year, around
$150,000.
Are those figures at least in the ball park?
Judge BORK. They are in the ball park. Those are the only years
I ever made any money in consulting.
Senator LEAHY. Yes, but I just do not
Judge BORK. And there was a reason why I did it and I do not
want to go into it here.
Senator LEAHY. I understand. And I understand those reasons
and I agree with them and I have absolutely nothing against that.
You were absolutely justified in earning that, but each one of us
made certain decisions to go into private light and I did not want
the Senator from New Hampshire to leave a mistaken impression.
You were absolutely justified in making those fees. They were to-
tally proper and nobody is suggesting otherwise.
Judge BORK. All right. Those were the only years in which I did.
Senator LEAHY. Thank you.
Senator HUMPHREY. Judge Bork, this is a very personal question.
If you would prefer not to answer it, by all means do not. But were
those years in which you engaged in outside employment years
which coincided with heavy medical bills in your family?
Judge BORK. Yes.
The CHAIRMAN. I think it is appropriate we stop and take a vote.
[Recess.]
The CHAIRMAN. The hearing will resume.
Judge, with the grace of God, the good will of the neighbors, and
the cooperation of the Senate, we will have you out of here in an
hour.
Judge BORK. All right. Thank you, Mr. Chairman.
The CHAIRMAN. Okay? Sorry we are going so late.
Senator Specter?
Senator SPECTER. Judge Bork, I regret that I missed a good part
of the proceeding today because I had a prior commitment to join
the President and go into Philadelphia for the celebration. But I
have been briefed and I hope that I will not ask you on areas
which have already been covered otherwise.
428
But I would like to return now to the question of first amend-

ment freedom of speech. You had made a comment in the latter
part of the questioning of Senator Leahy about what you termed
confirmation conversion, suggesting that there may have been
some changes in your approach today caused by the confirmation
process.
You had made a comment that Brandenburg was "not a great
change of mind" for you on this issue. And I raise a question with
you, Judge Bork, about the candor of that representation. This is a
very complex subject. You have to wade through an enormous
number of cases to really come to grips with it.
You had commented, back in the Indiana Law Review article, at
page 20, that "I am, of course, aware that this"referring to the
clear and present danger testdeparts drastically from existing
court-made law."
You also said, in the University of Michigan speech, that "Hess
and Brandenburg are fundamentally wrong interpretations of the
first amendment. And in the Indiana Law Review article, you go
on for 15 pages spelling out the differences, so that it seems to me
that it is really plain on the face of this record your understanding
and acknowledgement that there is really an enormous difference
between the principles you article and that Justice Sanford had ar-
ticulated years ago, and what the clear and present danger test
stands for and what Brandenburg stands for, isn't there?
Judge BORK. That is correct, Senator, but let me speak to this
issue of confirmation conversion, which I think is quite wrong and
I have adhered to a number of positions that I have taken previous-
ly that are controversial, or at least seem to be.
On Brandenburg, I did not say my mind had changed. I think it
would have been legitimate for the Court to follow the line I took,
which was that advocacy of violent overthrow of the Government
or advocacy of lawless behavior, violation of law, when you are not
trying to test the constitutionality of the law, the Court could have
said that the legislature may prohibit that speech.
But what I said was, as a theorist, I doubted Brandenburg. I
think Brandenburg may have gone toowent too far, but I accept
Brandenburg as a judge and I have no desire to overturn it. I am
not changing my criticism of the case. I just accept it as settled
law.
Senator SPECTER. Well, when you say that Brandenburg and your
acceptance of it is not a great change of mind, it seems to me that
that is not really quite on target considering your very forceful dis-
agreement with the Holmes clear and present danger test and with
Brandenburg.
Judge BORK. Well, I am not saying that I thinkif Brandenburg
and the clear and present danger test came up for the first time, I
think I might not agree with them, as a theorist and maybe even
as a judge. But they are not coming up for the first time, they are
settled law. That is, Brandenburg, I suppose, lies somewhere on the
spectrum between my position when I agreed with Sanford and the
clear and present danger test.
And, as a theorist or as a judge facing it for the first time, I
might not vote for Brandenburg.
429
Senator SPECTER. Well, Brandenburg is pretty much the clear
and present danger test. It really follows from the clear and
present danger test as you wrote and spoke at the University of
Michigan.
Judge BORK. Well, I was corrected on that once. I was arguing a
case in the Supreme Court and I referred to the clear and present
danger test, and Justice Douglas said, "We got rid of that with
Brandenburg" So they at least intended Brandenburg to be some-
thing different altogether.
Senator SPECTER. Well, that is when you were arguing Parker v.
Levy.
Judge BORK. That is correct. Now, what I am simply saying is I
am not sitting here today telling you that if I write an article again
as a law professor that I would say Brandenburg is wonderful. All I
am telling you is that as a judge I accept Brandenburg as the law.
Senator SPECTER. But the difficulty, Judge Bork, is that the cases
arise and there are many nuances, and when you interpret the
clear and present danger test, Brandenburg, Indiana v. Hess, a
mind-set is of importance.
When you commented about this yesterday, we talked about
ideas which were old ideas, but you had pretty much adhered to
your position that you had written back in 1971 and that you had
spoken about at Michigan in 1978 when you addressed the Judge
Advocate General's School back in 1984, hadn't you?
Judge BORK. I forget what I said at the Judge Advocate General's
School. That was a talk made from notes. Originally, I don't think
it was written out much.
Senator SPECTER. NO, there is a text.
Judge BORK. IS there? Might be a transcript.
Senator SPECTER. Well, I don't know about a transcript. You pro-
vided text to us of about 80 of your speeches, and in that speech
you talk about the clear and present danger test, or you talk about
Brandenburg and you talk about Justice Douglas 'comment to you,
and you make the statement here that you almost had pity, but
there is no question from the context of the speech at pages 9 and
19 that you stand firmly behind your opposition to the clear and
present danger test.
Judge BORK. May I see it? The only thing I want to see is the
Judge Advocate General's School talk. That is the only one I don't
have.
Senator SPECTER. YOU are welcome to it.
Judge BORK. All right. Thank you.
Senator SPECTER. Let me move on for a moment, and we can
come back to it, Judge Bork.
Judge BORK. Well, let me just say this, Senator. If disagreement
on theoretical basis with a case you are willing to accept as an es-
tablished precedent is somehow a problem, then I think every can-
didate who has thought about areas of the law is going to have a
problem. Because many cases we accept we don't agree with, and
that is just the natureI don't think there are any two judges or
lawyers who would agree on all these matters.
Senator SPECTER. Well, Judge Bork, that brings up the subject
down the line as to original intent and how firmly committed you
are to accepting stare decisis, and there are some strong statements
86-974 0 - 89 - 16
430
which you have made that an originalist ought not to accept, cases
which have been established because of the complexity of the
amendment process. That is a somewhat different discussion, but I
am concerned about your views for two reasons.
One, the next case will have a shading and a nuance and I am
concerned about your philosophy and your approach. And, second-
ly, I am concerned about your acceptance of these cases. If you say
you accept this one, so be it. But you have written and spoken, os-
tensibly as an original interpretationist, of the importance of ori-
ginalists not allowing the mistakes of the past to stand.
Judge BORK. I think that II, obviously, have also said that the
commerce clause and the federal power generally was probably not
intended, but they have to stand because it is to late in the day to
overturn themto much has happened, too much has grown up
around them: statutes, institutions, expectations, and so forth. I
have said that about a number of areas.
So that any idea that an originalist, I don't think an originalist,
a person who believes in original intent, can do without a doctrine
of precedent; otherwise, he would be constantly trying to rip up the
nation and its laws, and you can't do that.
Senator SPECTER. But you have made some very strong state-
ments about changing precedents where they are at variance with
original intent.
Judge BORK. Well, that certainly is one factor to be considered,
no doubt about it.
Senator SPECTER. Let us pick up the underlying thrust of your
criticism of the clear and present danger test because I think this
is very important in terms of where you go with the next case. As-
suming, and I accept your statement that you agree, or were will-
ing to apply Brandenburg and Hess v. Indiana, but the next
case
Judge BORK. Well, I didn't speak to Hess v. Indiana, Senator.
Senator SPECTER. Okay. How about Hess v Indiana?
Judge BORK. All right. No, I am not so wild about Hess v Indi-
ana. That is a case of obscenity in the public streets, and some-
times the Supreme Court allows people to stop obscenities, some-
times it doesn't.
Senator SPECTER. Well, the Supreme Court decided Hess on the
Brandenburg doctrine flat out.
Judge BORK. But I think there was a problem of obscenity in
there and not just the problem of inciting to lawlessness. Now, if
the gentleman had said what he said without the obscenities, that's
right, Brandenburg covers it.
Senator SPECTER. Well, the Supreme Court said Brandenburg
governed Hess.
Well, I have got a copy that I can make available to you.
Senator SPECTER. We will come back to that. Let me move ahead
to the underpinnings of the clear and present danger test, and let
me read a very short extract from Holmes' dissenting opinion in
Abrams at page 630 of 270 United States Reports. And I think,
Judge Bork, this is really the essence of the first amendment free-
dom of speech, and this is the doctrine which you have character-
431
ized as being "internally inconsistent" and being "terrifying frivoli-
ty."
But when men have realized that time has upset any fighting fates they may
come to believe, even more than they believe the very foundations of their own con-
duct, that the ultimate good desired is better reached by free trade in ideas, that the
best test of truth is the power of the thought to get itself accepted in the competi-
tion of the market, and that truth is the only ground upon which their wishes safely
can be carried out. That, at any rate, is the theory of our Constitution.
Now you had very strongly criticized the Holmes statement
which appears at page 20 of your Michigan Lav/ Review speech,
and you say this:
There is doubt about even the proviso, for Holmes could bring himself to write in
Gitlow, and Brandeis to join him, that, "If in the long run the beliefs expressed in
proletarian dictatorship are destined to be accepted by the dominant forces of the
community, the only meaning of free speech is that they should be given their
chance and have their way." That statement [and this is you speaking now] defies
explanation.
It seems to me, Judge Bork, in studying the long line of cases on
freedom of speech, that the essence of a lusty debate and full dis-
course is to let it go on and on and on until you reach the point of
imminent violence. And if there is imminent violence, then there is
a clear and present danger, and it stops and it becomes wrongful
conduct, and it becomes criminal conduct.
But even in the context where the proponent argues the proletar-
ian dictatorship, as much as we dislike it, we say, go ahead. Or
even as much as the proponent says, "Let's have a revolution to
get there," which is the advocacy of lawlessness which you also
condemn, that seems to me to be within the Holmes doctrine and a
proper description of the law and the spirit of freedom of speech.
Because if the person has to resort to violence in a democratic soci-
ety, it shows the absurdity of his position, when he doesn't need
under our system to resort to violence.
But as long as it is mere words, he ought to be permitted to say
it, and that, as I read the cases and get the feel of the first amend-
ment. And freedom of speech is really the core value, and is hardly
frivolous.
Judge BORK. Senator, let me address Holmes' rationaleHolmes'
reasoning, which I think defies explanation on his own terms. He is
saying, and in this first part I agree with him entirely, that the
first amendment is intended to protect free trade in ideas, and the
test of their truth is their acceptance in the marketplace of ideas.
That is fine.
Then he says it is all right for people to advocate revolution to
shut the marketplace of ideasto advocate violence by which a mi-
nority will seize the government and shut off the marketplace of
ideas. And he concludes that by saying,
If, in the long run, the beliefs expressed in proletarian dictatorship are destined to
be accepted by the dominant forces of the community, the only meaning of free
speech is they should be given their chance and have their way.
Dominant forces in the community is not a majority voting for
proletarian dictatorship, and the man who was speaking there was
not advocating an election to put in proletarian dictatorship. He
was advocating violence to close the marketplace of ideas. He was
advocating violence to close, to stop the free trade in ideas.
432
Now that it seems to me you can't get from "the most wonderful
thing about our society is the free trade in ideas" to "it's all right
for this fellow to try to get people to overthrow the government so
that they can close the free trade in ideas."
Senator SPECTER. Well, I disagree categoricallyif you don't get
to the point where violence is imminent, to argue that there ought
to be a proletarian dictatorship. It is a terrible system as you and I
see it, but on the merits, let him argue it.
Judge BORK. Oh, I would let him argue it.
Senator SPECTER. YOU would let him argue the proletarian dicta-
torship?
Judge BORK. Oh, sure. I would let him argue it.
Senator SPECTER. Why not let him argue violence if it doesn't
come to a point of inciting to violence? Isn't the very argument,
itself, undercutting any rationality of the argument?
Judge BORK. NO. The
Senator SPECTER. AS long as there is no violence that is immi-
nent.
Judge BORK. Well, oneSanford's point, a point I think that had
some merit to it, is that if you get a lot of these arguments going
on you don't know when violence is imminent. A lot of this is con-
spiratorial and advocacy taking place in organizations that orga-
nize like military units.
Now it does seem to me, or it seemed to me then and I suppose it
seems to me now, that it would be a defensible first amendment
position to say that whether or not there is a real danger to our
form of government and to our freedoms and to our free speech
posed by this kind of thing, advocacy of violence to close the mar-
ketplace of ideas, is a legislative judgment, and they may choose to
let that speech go forward or not. That was what I said then, and it
seems to me it is a tenable philosophical position now.
However, I have also said that, that is, the settled law has
become otherwise. The Holmes-Brandeis position has triumphed in
the law, and Brandenburg, while it is different from the clear and
present danger test, and you can tell that because the clear and
present danger test was applied in the Dennis cases, you know, the
Smith Act cases about the Communist Party, and Brandenburg
would not uphold the Smith Actthe Dennis case, we have now
come to the Brandenburg test. And I think, as I have said, I don't
know, if we were starting over again, that I wouldn't have agreed
with Sanford in the first place. I mean, a majority of the Supreme
Court agreed with it.
All I am telling you is I now accept, as a judge, the position that
the law has reached, and I have no desire to overturn it. I have no
desire to whittle it away. But that does not mean that I have aban-
doned my original critique of those theories. I haven't even thought
about them again, much less abandoned them.
Senator SPECTER. Well, when you talk about Brandenburg being
different from the clear and present danger test, I don't think it is,
and that is not the way you wrote it.
Judge BORK. Well, it is. May I see that? Do you have the Dennis
case there?
Senator SPECTER. Well, this is what you said, analyzing the doc-
trine at the University of Michigan, at page 20 going onto 21:
433
"The Holmes-Brandeis position held that virtually the only harm

caused by speech that society can protect itself against is the pros-
pect of imminent violence. After much weaving through such cases
of Dennis and Yates, that reading was imposed upon the first
amendment in the last year of the Warren Court in Brandenburg
v. Ohio."
So you flatly say there, as a matter of analysis, that Branden-
burg does pick up the Holmes-Brandeis doctrine of clear and
present danger.
Judge BORK. Well, I may have said that there, Senator, and I
may have misspoken. Because I think if you look at what Dennis y.
United States did, how it interpreted clear and present danger, it
saidthey picked up Judge Learned Hand's definition of clear and
present danger.
Senator SPECTER. Well, Judge Learned Hand's definition was
picked up in a plurality opinion by Chief Justice Vinson, but that
wasn't the opinion of the Court; there weren't five Justices. And
the Frankfurter concurrence deals with clear and present danger
in great detail.
Judge BORK. Um-hum.
Senator SPECTER. And it is running through the Frankfurter con-
currence and it runs through the Jackson concurrence, and it is
really the dominant theme of the case.
Judge BORK. Well, the plurality opinion saysand I can't find it
here because this is not my
Senator SPECTER. It picks up Judge Learned Hand's defini-
tion
Judge BORK. Yes. The Florida opinion says that you must look at
the gravity of the danger
Senator SPECTER. Play it against the evils.
Judge BORK.Discounted by the probability of its occurrence,
and that is not the Brandenburg decision. Because under that ver-
sion of clear and present danger, which is one version of it that it
seems to me quite possible to hold, under that version of clear and
present danger there may be no imminent act. It may be quite a
way down the road. But if the danger is greater enough, that
doesn't matter.
Now, Brandenburg said we need a closer connection between the
speech and the danger. We need a closer nexus. It has to be immi-
nent lawlessness. So I think Brandenburg does differ from at least
the way Hand and a plurality of the Supreme Court interpreted
clear and present danger.
Senator SPECTER. AS we have already agreed, you had taken the
position in a scholarly analysis before that Brandenburg was the
Holmes-Brandeis clear and present danger test.
Let me move on. We don't have a great deal of time, Judge Bork.
Let me pick up the question of equal protection of the law.
Here again, it may be that the short explanation is that you
have shifted from your writings, as recently as 1984
Judge BORK. Senator, may I interject there?
Judge BORK. I think our discussion of Brandenburg and clear and
present danger demonstrates that I have not shifted from my writ-
ings. I have said that, as a judge, I accept those cases as precedent
434
and will apply them. It's settled law. That's all I've said. I haven't
said that these writings were wrong. I have said that I accept that
body of precedent and will apply it. That's all I've said.
Senator SPECTER. Well, when the next case arises and it's distin-
guishable from Brandenburg, where will you be?
Judge BORK. It depends, Senator, entirely on what the next case
is and what it shows.
Senator SPECTER. Well, that's the reason that judicial philosophy
is so important. If you have a judicial philosophy, there is some
predictability as to where you'll be when the next set of facts
comes up which are different than Brandenburg. No two cases are
identical.
Judge BORK. NO, that's right.
Senator SPECTER. The application of a legal philosophy very
much depends upon the way it is held, and that's why, if you still
disagree philosophically with Brandenburg, and you still disagree
philosophically with the clear and present danger test, that raises
a question in my mind as to how you will apply it to the next set of
facts.
Judge BORK. Well, I'll apply it as honestly as I can. That's all I
can say to you.
Senator SPECTER. Judge Bork, let's go to the equal protection
clause, which I consider to be a very central matter. Here again, it
may be the same line of consideration.
As recently as this year, June 10, 1987it's the Worldnet com-
ment, and this is at page 12, where you talk about the equal protec-
tion clause. You say, "I do think the equal protection clause prob-
ably should have been kept to things like race and ethnicity", and
back in the Indiana Law Review you had written in stronger terms
that the equal protection clause applied only to race.
My first question is, if you work from the framers' intent, and
you have said that the framers' intent covered only race, how do
you even justify covering ethnic distinctions? How do you even jus-
tify the Yick Wo case in 1886 involving the Chinaman who had ap-
plied for a license to have a laundry and got turned down in San
Francisco? Can you imagine not having Chinese laundries
Judge BORK. Yeah. That was a race
Senator SPECTER. The case goes to the Supreme Court and they
say equal protection applies.
Now, if you're an originalist, and original intent governs, and
original intent was only to cover race, which you say flatly in the
Indiana Law Review, how can you apply equal protection to eth-
nics?
Judge BORK. Well, I take it that Chinese people are a racial clas-
sification.
Senator SPECTER. Well, you're not saying that that's within the
intentment of the equal protection clause passed after the Civil
War; the Civil War didn't involve the Chinese.
Judge BORK. NO, it didn't. It certainly didn't. But the equal pro-
tection clause clearly covers whites, and I think the framers
Senator SPECTER. Does it clearly cover whites under original
intent?
Judge BORK. Yeah, I think it does, Senator.
Senator SPECTER. Where does that come from?
435
Judge BORK. From the statements of the people who were in-
volved in drafting it and ratifying it.
Senator SPECTER. That there was an intent by the drafters and
ratifiers of the equal protection clause of the 14th amendment, to
give equal protection to whites?
Judge BORK. Yes.
But let me go on with that, Senator, because
Senator SPECTER. Where?
Judge BORK. Well, I don't have the citations in front of me. If
you look at Congressman Bingham's discussions, he, of course,
talked about almost everything that it covered. But he is not the
only one. He merely proposed the amendment, and he proposed
By the way, he thought it incorporated the Bill of Rights against
the States.
If you go to the ratifiers, there's a great deal of talk about vari-
ous things. If one approaches the amendment by saying it applies
to groups, and you have to decide which group is covered and
which group is not covered, then I think you're going to have to
say they were talking about race and perhaps, as Justice Rehnquist
has said, race-like things, whatever those are.
Now, there is a difficulty with that, and the difficulty is that the
text doesn't read that way. But more than that, the fact is that the
Supreme Court, for all of this century and perhaps before, has
come up with a reasonable basis test so that they have applied the
equal protection clause under that test to everything, even to eco-
nomic distinctions. If you take the reasonable basis test seriously,
which they have not always done, when they called it a rationality
standard, if you take the reasonable basis test seriously, then the
clause applies to the reasonableness of all distinctions between
people and it applies to things well beyond race. That is settled doc-
trine and it's been going on for a long time now. It doesn't require
you to say which groups are in and which groups are out, which is
the way the Supreme Court was approaching it.
Senator SPECTER. But, Judge Bork, if you accept that, you're to-
tally away from original intent, which was for blacks, as you wrote
it, and for blacks as a racial issue. It doesn't talk aboutthat
doesn't include women, it doesn't include illegitimates, it doesn't
include indigents, it doesn't include a whole pile of equal protection
clause cases.
Absent the equal protection clause, you would find no basis for
striking a State law simply because it didn't have a reasonable
basis on a public interest, a classification logically related to
achieving a legitimate State interest.
Judge BORK. NO. I think the equal protection clause is the pri-
mary, if not the sole, way to approach those things. What I am
trying to say is that there is a settled line of Supreme Court prece-
dent running back at least 90 years which adopts a reasonable
basis test and applies the equal protection clause to all kinds of
things.
Senator SPECTER. NO doubt about that. And the Court, in doing
that, has departed totally from the original intent of the framers
and the ratifiers. The framers and ratifiers did not have women in
mind, did not have illegitimates in mind, did not have poor people
in mind, did not have Mexicans in mind, did not have Chinese in
436
mind. So I think the Court is right, and I'm certainly not objecting
to that interpretation of the equal protection clause. But what I am
trying to do is square that with your very forceful statement that
you are going to carry out original intent.
Judge BORK. Well, I have also said, Senator, that anybody who
tries to follow original intent must also have a respect for prece-
dent, because some things it's too late to change.
Now, the application of the equal protection clause to all kinds of
people other than racial groups is so settled, and so many expecta-
tions have grown up around that, so many segments of our popula-
tion have internalized that kind of protection, so many institutions
are built on it, that it's an interpretation that should not be over-
turned.
Senator SPECTER. Are you saying, then, that you will apply equal
protection to women, just as the Court currently does?
Judge BORK. Yes. In fact, I said this morning, I think twice, in
different questioning, that I think a reasonable basis test gives you
the same results as to gender that the Supreme Court has been
reaching.
Senator SPECTER. HOW about the strict scrutiny test, classifica-
tion necessary to protect a compelling State interest?
Judge BORK. Well, that's what I was objecting to, Senator.
There are two methodologies
Senator SPECTER. That's really the essence of equal protection,
though, isn't it? If you use the reasonable basis test, a rational
basis, pretty much everything is stricken, that there is always
something that can be conjured up as a rational basis?
Judge BORK. NO, no, Senator. They did that, and I objected to it. I
think I objected to it in the Indiana article, because they begin to
imagine rational bases.
For example, I cited the casesI cited critically in the Indiana
article. They upheld the statute that said women couldn't be bar-
tenders unless they were related to a male owner or proprietor of
the bar. I thought that was a ridiculous distinction and I criticized
it.
There are two methodologies. Let me be as clear as I can about
this. One is to say we will pick a group and say which level of scru-
tiny does it get. It is often said that race distinctions get strict scru-
tiny and require a compelling governmental interest.
Then there is intermediate scrutiny. Then there is rational basis,
which is not what I'm talking about on an unreasonable basis.
Those are almost conclusions. You know if they get strict scrutiny,
the statute is going to be struck down. You know if it gets rational-
ity scrutiny, it's going to be upheld.
In the intermediate case, the intermediate level of scrutiny, you
don't know what they're going to do. There is no predictability to
it.
I prefer to apply a reasonableness basis test to all of those levels,
and the result of that is that distinctions based on race almost
never will be reasonable, except in the most urgent circumstances.
Distinctions based upon gender will rarely be reasonable because,
in our society, as we now view the place of women in society, only
extreme cases based upon biological differences would probably be
upheld. I mean, things like women in combat, only men in combat.
437
Senator SPECTER. My time is up. Let me just make a final obser-

vation.
What troubles me as I hear your testimony, after having studied
your writings and your opinions, is the very significant and pro-
nounced shifts. You start as a socialist, you become a libertarian,
you write a theory of constitutional law in 1968, as you described
yesterday; you change that in 1971 on neutral principles; you ar-
ticulate that doctrine in many speeches, dozens of speeches,
through the seventies and through the eighties. You are willing to
assure us that you will apply Brandenburg, which you think is fun-
damentally wrong, and a drastic change from your other writing.
The concern I have is, where's the predictability in Judge Bork?
What are the assurances that this committee and the Senate has
as to where you will be given the background and this history. I
don't know that you can really answer that, but I would be pleased
to hear your comments.
Judge BORK. In the first place, Senator, the fact that as a teen-
ager and into my early twenties I was a socialist hardly seems to
me to indicate fundamental instability. As Winston Churchill, I
think it was, said, "Any man who's not a socialist before he's 40
has no heart, and any man who is a socialist after he's 40 has no
head." [Laughter.]
I think that kind of evolution is very common in people, very
common.
Now, the original intent philosophy I have been publishing now
for 16 years, and I don't intend to move from it. Other things
Brandenburg, I have not shifted. I have said to you that I would
have thought, as an initial matter, that advocacy of law violation
could be prohibited when you're not using it to test the constitu-
tionality of a statute.
I have also said the Supreme Court added to that the fact that
advocacy of law violation may be prohibited if lawless behavior is
imminent. I don't think they needed to add that. I am willing to
accept the fact that they added that, as a judge. And my first obli-
gation as a judge is not to write theoretical essays; it is to decide
cases and keep the law, insofar as possible, stable and continuous.
Senator SPECTER. Judge, how can you say that you're standing by
original intent when you say that you're prepared to accept the Su-
preme Court decisions on equal protection which have deviated to-
tally from original intent?
Judge BORK. YOU see, I don't know, Senator, that that's entirely
true. I think they were thinking about race. But I think they may
have also thought about reasonableness. I'm not sure. I'm not an
expert on this. But in any event
Senator SPECTER. Wait a minute. You have written flat outand
this isn't a matter of accepting a Supreme Court opinion; this is a
scholarly work, where you say that when the equal protection
clause of the 14th amendment was adopted, the framers and the
ratifiers had race in mind and race only.
Do you now think they had something else in mind?
Judge BORK. I don't know. I do not know that history. There's
been a lot of historical research since then and I'm not relying
upon original intent. What I am relying upon is a mode of analysis
that the Supreme Court instituted in the last century. It seems to
438
me a little late for anybody to tear that up, even if it doesn't
square with original intent. That's what I'm saying to you.
There are established doctrines thatsomebody may go and ex-
amine the history of the 14th amendment and say that doctrine
really isn't supported by the original intent. But if it's estab-
lished
Senator SPECTER. It's too late to tear up the doctrine of privacy?
Judge BORK. We will face that when we come to it, Senator. I
have told you how I would face it.
Senator SPECTER. We're facing all these other matters this after-
noon.
Judge BORK. NO, but some things are absolutely settled in the
law. I have told you what they are. I have told you that the incor-
poration doctrine is; I have told you the commerce clause is and so
forth. These are things of not only long standing but all kinds of
things have grown up around them. Any judge understands that
you don't tear those things up.
When you ask me about a current controversial issue, I cannot,
and I should not, give you an answer.
Senator SPECTER. Thank you very much.
The CHAIRMAN. The Senator from Illinois.
Senator SIMON. Thank you, Mr. Chairman. I thank my colleague,
Senator Heflin, for yielding to me, and I yield briefly to Senator
DeConcini for a statement.
Senator DECONCINI. Mr. Chairman, I have just been contacted by
former Dean Paul Marcus of the University of Arizona. He has in-
formed me that no one has secured his approval for his name to
appear on the list of the Senator from Utah published here a few
minutes ago of 100 select law professors. He has not taken any po-
sition in favor of or in opposition to Judge Bork. He is sending me
a letter stating that and has copied Judge Bork on that matter. But
he is concerned that he is being represented as supporting Judge
Bork and he takes no such position.
I wanted the record to show this.
Senator HATCH. Let me say this. It is my understanding that he
was, but if that's so, there are still 99 there. We will check on that
and we'll go with the 99, because they're all eminent, every one of
them are good, and I would hope he will reconsider as he considers
Judge Bork's testimony here.
Senator DECONCINI. I thank the Senator from Illinois.
The CHAIRMAN. The Senator from Illinois.
Judge Bork, I was a little startled to hear your response to Sena-
tor Leahy on the pro bono work. One of the things that is impor-
tant for a Justice on the Court, or a judge on the federal bench, to
have is some understanding for those less fortunate in our society.
Are there other things that you have done with the less fortu-
nate in your 60 years of work, helping or volunteering to work
with the retarded or whatever it may be?
Judge BORK. NO, Senator, I can't claim a record of that sort.
Now, if you ask me do I know anything about such people, obvi-
ously I do, through a variety of waysnot the retarded in particu-
lar, but obviously I do through a variety of life experiences. But I
have not done what you suggest.
439
Senator SIMON. I thank you.
Let me turn to another area of concern, and that is something
we discussed yesterday. I said,
One point, at a speech at Berkeley in 1985, you say "What a court adds to one
person's constitutional rights, it subtracts from the rights of others."
That's a quote.
Do you believe that is always true?
Judge BOEK. Yes, Senator, I think it's a matter of plain arithmetic. I think our
Constitution gives a constitutional right or a liberty in areas where the Bill of
Rights or the Civil War amendments don't prohibit it, citizens to sit down and elect
their representatives and make their laws.
If a court strikes down such laws on behalf of a plaintiff claiming liberty, it auto-
matically deprives the first group of its liberty. So what you're talking about here is
a redistribution of liberty.
My concern is that we're not just talking about taking two or-
anges off a shelf and shifting them to another shelf, that there is
no arithmetical equality here. Let's use the case we used yesterday,
of slavery. When you take away the liberty of a slave owner to
have slaves, and grant liberty to those who are slaves, while I sup-
pose you are taking one right away from the slave owner, the dis-
parity is so great that it is important that that liberty be granted.
Judge BORK. Oh, it is. I entirely agree with you.
Senator SIMON. SO when you say "I think it's a matter of plain
arithmetic "
Judge BORK. Well, obviously, if you tell somebody he has a right
against somebody else, the other person loses something. That's all.
That is standard legal analysis. I don't think there's any question
about it.
The fact is that in the case of slavery, we have the 13th amend-
ment because we thought it was important to give slaves rights.
We have the 14th amendment because we thought it was impor-
tant to give former slaves rights, and the 15th amendment on
voting rights was equally because we wanted to shift power or
rights away from a ruling class that had it and give it to an under-
class that needed it.
I have no objection to that. I just say that one must recognize
that when youwhen a community passes a law because it, say,
wants to prohibit something, and the court says that law is invalid,
it gives the people who object to the law liberty and takes it away
from the folks who wanted the law.
That's fine, and I like it, if it's in the Constitution. The Constitu-
tion itself redistributes rights and it's intended to, and it should.
The only thing I have ever objected to was the court doing it with-
out constitutional authority.
Senator SIMON. But when you look at the Constitution, you're
not looking at the Tax Code. If you're writing a Tax Code, and if
you grant some group 1 billion dollars' worth of exemptions, you
eliminate 1 billion over on the other side. You recognize that?
Judge BORK. Of course. But I was not saying that the liberties of
the two groups are of equal value. We redistribute liberties all of
the time, not only through the Constitution but through statutes,
regulations and so forth. That's the way government operates.
But what I was objecting to in that speech was the rhetoric, that
every time the Court makes up a new right, it enlarges liberty
440
well, it does for one group, but it diminishes it for another group.
That's all I was saying.
Senator SIMON. I guess my concern is, as I hear it, you seem to
almost equate the two.
Judge BORK. No.
Senator SIMON. All right.
Judge BORK. Let me back up.
It may beone has to mention various categories. It may be, if
the Constitution says you may not do this to this minority, and the
Constitution says that frequently about various kinds of minorities,
then that's fine. The Constitution has made the determination that
the rights are to be there and not with the larger group. That's
fine. That's exactly what constitutional law is about.
If a court, without guidance from the Constitution, says to an in-
dividual or a minority that "you may not be regulated in this
way", then the court has redistributed the liberties without author-
ity from the Constitution. It is wrong to say they have just in-
creased liberty. They may or they may not. They've certainly redis-
tributed liberty.
My only point was that a court has no authority to do that with-
out constitutional mandate.
Senator SIMON. I have long thought that it is fundamental in our
society, that when you expand the liberty of any of us, you expand
the liberty of all of us.
Judge BORK. I think, Senator, that is not correct.
For example, to take an example that I think most people would
recognizeand we've been around this, and I don't mean to keep
harping on this one example, but it's an obvious example. If a com-
munity decides that it wants to ban certain forms of obscenity, be-
cause that obscenity impacts on their children, their family life
and attitudes and the moral environment, and if a court should
come along and say you may not ban that obscenity, so that the
practice of showing obscene materials and so forth increases, I
think the majority has lost some liberties. Not everybody's liberty
has been expanded.
Now, we can differ about that, but it seems to me fairly evident.
One of the great liberties we have is to govern ourselves through
representative bodies like the Senate and the House of Representa-
tives. If a court takes that away from us, we've lost a liberty. A
court ought to take it away from us if the Constitution says so. It
ought not if the Constitution does not say so. It should leave us the
liberty of electing our Representatives and Senators and having
them make public policy for us.
Senator SIMON. Then we get back to the exchange you had with
Senator Specter here, where if I follow you correctly, and please
correct me on thisyou go back to original intent, but you accept
precedent for the Chinese, for others, under the equal protection
clause. But you are not willing to create the precedent in behalf of
liberty.
Judge BORK. Yes, I am. Under the equal protection clause,
sinceOnce you begin to operate, as the Court has, and as John
Paul Stevens suggests, with a reasonable basis test which would
produce the same results in race and gender, as the Court current-
ly gets through its multi-tier analysis, then as various challenges
441
come up under the equal protection clause, the question will be
whether this is a reasonable distinction or whether it's an out-
moded stereotype of some sort.
If a new challenge is made by a new group, then I would create
precedent, obviously, if I apply that test as I said I would. The Con-
stitution says any person, and if you look atthat any person is
protected under the equal protection clauseif you look at the lan-
guage, which an original intention person should, I think you're
driven to a reasonable basis test.
Now, I am sure that the framers of that 14th amendment did not
think that the way women were treated in those days was unrea-
sonable. That was seen to them very natural. Now, as women's
place in society has changed, all of those distinctions that they
made and thought were entirely reasonable now look to us unrea-
sonable. That's the way constitutional doctrine evolves.
Senator SIMON. Let me again readand I recognize you have
changed your opinions from this Indiana Law Review article,
which you have heard more about in the last three days than you
probably want tobut let me just read a few sentences here.
"Compare the facts in Griswold with a hypothetical suit by an
electric utility company "
Judge BORK. Could I have the page, please, Senator, so I can
follow you?
Senator SIMON. It is pages 9 and 10.
Judge BORK. All right. I'm sorry to stop you.
Senator SIMON. "Compare the facts in Griswold with a hypotheti-
cal suit by" this is the case where the law outlaws the use of con-
traceptives "with a hypothetical suit by an electric utility compa-
ny and one of its customers to void a smoke pollution ordinance as
unconstitutional. The cases are identical." Now, I could go on and
read the rest. But you say "It is clear that the court cannot make
the necessary distinction."
Do you really believe that in one case, where a couple uses con-
traceptives and the majority in the court rules that that is uncon-
stitutional, that that is really identical with an electric utility com-
pany violating a smoke pollution ordinance?
Judge BORK. Let's beI must be very clear about what that
means, because it is explained in the pages that follow. We are now
talking about a caseLet me back up.
As a legislator, if I were a legislator, I would clearly vote for the
smoke pollution ordinance and I would vote against the anti-con-
traceptive ordinance, and as a citizen I would oppose the anti-con-
traceptive statute and I would vote for the smoke pollution statute.
I am talking here about two cases in which, if there is no consti-
tutional objection to either statute, then a judge has no way of im-
posing his moral preferences upon the Constitution. That's all I'm
saying. I'm saying the judge may not have a hierarchy of values
that does not come from the Constitution. He may not say to a con-
sumer, "You value your low-cost electricity, but that's an ignoble
value, whereas the other is a noble value" unless the Constitution
tells him to make that choice.
A legislator can make that moral distinction because a legislator
is responsive to the people and must make moral choices all the
time. I think a judge is supposed to enforce the morality of the
442
people who made the lawin this case, the Constitution. That is
the only reason I say the judge has no way to tell those two cases
apart if the Constitution does not speak.
Senator SIMON. But I guess that gets back to whether you use
the Constitution to expand liberty, as Justice Harlan indicated in
that quotation I read yesterday. My hope is that the courts,
through the decades ahead, will, where it is prudent, see that we
can expand liberty, the right of privacy and other things.
My concern, as I look at your record and a host of things, is you
are moving, perhaps somewhat reluctantly, and if not reluctantly,
then after the fact, accepting the decisions and the precedents of
the Court, but not leading in seeing that people have these rights.
Is that an inaccurate reading of the record?
Judge BORK. Well, the difficulty with the record is that I wrote
only about what I regarded as excesses by the Supreme Court. I did
not write about the ones that I thought were approving. As a
matter of fact, over the period of years I was discussing, I don't
suppose I was criticizing more than one or two Supreme Court
cases a year. When they made a proper expansion of liberty, I did
not sit down and write an approving article. Perhaps I should have.
It was only when I thought a principle or a mode of decision that
was coming into the law was not justified that I wrote an article.
That is why you will not see the other side. But, you know, I
have said there are a lot of opinions that II approve of most Su-
preme Court opinions. Some of them expand liberty.
Senator SIMON. I thank you, Judge.
Let me just add again my concern, that through the courts, as
well as through the House and Senate, and through the White
House, that we provide leadership in protecting the rights we have
and expanding that base of rights. I want those on the Court,
where that leadership has been so important, to be sensitive to the
less fortunate, sensitive to those who sometimes are unprotected in
our society.
Judge BORK. Well, Senator, we had a discussion this morning
not you and Iin which I pointed to my record as Solicitor General
and my record on the court of appeals, which has beenas I said, I
have the material here and I will submit it for the record later
which has been, in seven out of eight cases, involving claims by
racial minorities or by women, in seven out of eight cases I have
voted for the racial minority or the women.
I have a lot of labor union cases in which I voted for the labor
union. There simply is no reason to expect that I will not continue
to do that. I wouldn't have done it in the first place if I didn't
think the law called for it.
Senator SIMON. Thank you, Judge.
The CHAIRMAN. The Senator from South Carolina.
Senator THURMOND. Judge Bork, I just want to commend you for
being so frank and open with your testimony. You have answered
all the questions, and you have answered them not one time but
three or four times. You have proven that you're a real scholar and
we are proud of you. I think you will make a great Justice.
That's all, Mr. Chairman.
443
The CHAIRMAN. The hearing is recessed until tomorrow morning

at 10:00 o'clock.
[Whereupon, the committee adjourned at 6:37 p.m.]
FRIDAY, SEPTEMBER 18, 1987

U.S. SENATE,
Washington, DC.
SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr.,
chairman of the committee, presiding.
Also, present. Senators Thurmond, Kennedy, Heflin, Leahy,
Metzenbaum, Simpson, Hatch, Grassley, Humphrey, DeConcini,
Specter.
Welcome, Judge. As I said yesterday, with the grace of God and
the good will of the neighbors and short questions and short an-
swers, we just may get finished today. That is my hope.
Senator Leahy has indicated that he would like the floor for a
minute, and I will yield to him in a minute. After that, we will
then begin this morning's questioning with Senator Heflin. Then
we will move to Senator Humphrey. Then we will start a third
round of questioning.
I yield to the Senator from Vermont.
Senator LEAHY. Thank you, Mr. Chairman. Good morning, Judge
Bork.
Judge BORK. Good morning.
Senator LEAHY. There is something that you and I spoke about
last night that I would like to mention publicly today. I think a
lawyer's pro bono obligations under the canons of ethics are, of
course, a legitimate question for any nominee. But I am certainly
sorry that my line of questioning may have evoked some painful
memories for you. As I said yesterday, it is perfectly proper for you
to have consultant fees. In fact, they are an indication, I believe, of
your stature in the field of antitrust.
Senator Heflin.
Senator HEFLIN. Mr. Chairman, first I would like to commend
you for the way that you have handled the hearings. I think you
have been eminently fair. Frankly, I think you have even leaned
backwards every now and then, I would guess. I think that some of
my colleagues in the Democratic Party ought to have their heads
(445)
446
knocked a little bit, and there ought to have been a little hair pull-
ing on the other side over there in regards to matters.
Senator LEAHY. Some of us could not stand the hair pulling.
Senator HEFLIN. Anyway, I think you have been eminently fair,
and I say that I have the greatest confidence in your integrity and
your honesty.
Senator HEFLIN. Judge Bork, I believe we have pretty well cov-
ered the waterfront on the various judicial theories, except that I
do not recall that anyone has questioned you about the concept of
incorporating certain parts of the Bill of Rights into the due proc-
ess clause of the 14th amendment.
That has been a highly debated and controversial area of juris-
prudence particularly with i;he Warren Court, and there were ef-
forts made, I think, first, to try to go through the privileges and
immunities clause. Then they developed the concept of the due
process clause and the various writings that had differed pertain-
ing to that.
Would you give us your feelings of whether or not this was judi-
cial activism, judicial imperialism, or what is your feeling pertain-
ing to the reasoning that took place in the sort of selective incorpo-
ration theory?
Judge BORK. Senator Heflin, the historical evidence on that is
still coming in. When I first went into teaching, I think the re-
ceived wisdom was the article by Professor Fairman that appeared
in the Harvard Law Review, arguing that there really was not any
historical evidence for incorporation. He was responding to Justice
Black's opinion in the area. Since then, there has been more evi-
dence that incorporation was intended.
Now, it is perfectly clear, when we say "incorporation," as you
and I know but maybe not everybody who is listening to us does,
we are talking about the theory that the due process clause of the
14th amendment applies against the States the Bill of Rights which
originally applied only to the federal government. Since then, as I
say, there has been more evidence which tends to show that incor-
poration was intended. It is very clear that Congressman Bingham,
who wrote much of the clause and managed it in the House, and
Senator Howard, I think it is, who was the member of the commit-
tee that drafted it and was the floor manager in the Senateboth
of them clearly intended to incorporate not just the Bill of Rights
but any personal protection to be found in the Constitution, includ-
ing the original Constitution.
So there is some pretty good historical evidence that it was in-
tended. There is an argument whether the ratifying conventions
understood that or not. I do not know the answer to that, but it
seems to me that now the Court has done it. It seems to me that
there is some evidence that what they did was correct.
In any event, it seems to me a beneficial development and thor-
oughly established, and I do not think anybody really wants to see
the States free of the Bill of Rights. And as I say, I think there is
considerable historical evidence that it was intended, some that it
was not.
Senator HEFLIN. Well, I have not found and my staff has not
foundand as far as I know, nobody else has foundthat during
447
the period that this was developing that you wrote anything that
was basically critical of the doctrine at that time. Do you recall
ever writing anything pertaining to that aspect?
Judge BORK. No, I do not, Senator. I have mostly read secondary
sources. I read the Fairman article, and Professor John Ely, who
was recently dean of the Stanford Law School, wrote a book which
I read since then. He says that the evidence is not as clear as Fair-
man made it. In fact, they have some evidence, much evidence for
incorporation.
I have never written about it. I have never examined the original
sources. I think there is some historical support for it, and it is a
thoroughly established doctrine and it will stay that way.
Senator HEFLIN. In some of your writings and in your testimony
you have used the term "judicial imperialism." It seems to me you
make a distinction between judicial activism and judicial imperial-
ism.
Do you see a distinction? And if so, what is the distinction that
you have used and the context that you have used it?
Judge BORK. It is just a distinction. I do not want anybody to
think that I think courts should be passive and not defend individ-
ual liberties. They should be very active in that field. I prefer the
word "imperialism" to describe a process which they should not do,
which is to intrude upon, encroach upon the proper province of the
legislature.
Senator HEFLIN. Well, is it with more emphasis that you use the
words "judicial imperialism" as opposed to "judicial activism"?
Judge BORK. Well, activism does not mean the same thing as im-
perialism to me. As I say, courts should be active in enforcing the
Constitution and the statutes. I do not believe in a passive court
that just sits there and defers to everybody.
On the other hand, imperialism implies that somebody is taking
over territory that does not belong to them. That is what I mean
when a court takes over a territory that belongs to the legislature.
Senator HEFLIN. In an article in the "District Lawyer," which
was an interview between you and an attorney you made some
comments on stare decisis, which means let the decision stand.
Sometimes I think we get very legalistic here, and the public that
is watching may have to run to the dictionary. If it is not a law
dictionary, they may not find some of these terms. Maybe we will
try to explain the term of precedents and the concept which is a
very strong one, it provides certainty to the law and predictability
to affairs of persons, we follow the concept of let the decision stand
after they have been decided. I think maybe we should illustrate
that.
Anyway, you were asked a question in that article, and the ques-
tion was:
That suggests that the principle of stare decisis may be less weighty in constitu-
tional matters than in statutory matters. Is that your view?
And your answer was,
That has been the practice of courts throughout our history, and I am not pre-
pared to say it is wrong. There are some constitutional decisions around which so
many other institutions and people have built, that they have become part of the
structure of the nation. They ought not to be overturned even if thought to be
wrong. The example I usually give, because I think it is non-controversial, is a broad
448
interpretation of the commerce power by the courts. So many statutes, regulations,
governmental institutions, private expectations and so forth have been built up
around the broad interpretation of the commerce clause that it would be too late
even if a Justice or a judge became certain that the broad interpretation is wrong as
a matter of original intent to tear it up and overturn it.
I assume that you still agree with your statement that is made
there.
Judge BORK. Oh, I certainly do, Senator, and I have previously in
many speeches expressed that point. As we have discussed here, it
is not just the commerce clause, but the legal tender cases, the in-
corporation doctrine and so forth now part of the fabric of the
nation.
Senator HEFLIN. Then the question is,
But subject to that kind of prudential restraint where people have relied on prece-
dents, a body of legal doctrine, your views would be that a Justice is entitled as a
part of his responsibility to re-examine constitutional questions de novo.
Answer,
I would think that is true of a judge and true of a law court judge unless he is
bound by a Supreme Court precedent. After all, there are a lot of considerations
that go into it. But at the bottom, a judge's basic obligation or basic duty is to the
Constitution, not simply the precedent.
Now, is that your thinking still today?
Judge BORK. Yes; that is a very conventional view, Senator. I
have here quotations from Justice Brandeis and Justice Douglas.
That has been the court's practice. I learned that in the first year
of law school that judges respect precedent in all fields, but some-
what less so in constitutional law than they do in statutory law. I
remember I learned that in my first class from then Professor
Edward Levi, later Attorney General, among many other things.
And it is in his book, "Introduction to Legal Reasoning."
The Supreme Court has always said that, and many Justices
have said that. That is conventional wisdom.
Senator HEFLIN. In April of this year, to the Philadelphia Socie-
ty, you delivered a speech which has been entitled "Bork's Wave
Theory of Law Reform."
Judge BORK. I do not think that was my title, Senator. Somebody
else put that title on there.
Senator HEFLIN. Well, maybe it was entitled "A Crisis in Consti-
tutional Theory: Back to the Future."
Judge BORK. That was the title, yes.
Senator HEFLIN. Well, now, in that speechI have been trying to
get it and I just got itbasically, as I understand it, these words
were containedand if you have a copy of that speech, they are
excerpts from it.
Judge BORK. I have a copy, Senator. Do you have a page number?
Senator HEFLIN. Well, I just got this. There was an article in the
National Review that had excerpts where part of it was left out,
that sort of thing. So my question is framed at the time and the
context of that as well as other writings that we have had, well,
sort of excerpts from it. If it is not fairly presented to you, let me
know. I want to be completely fair. But this is basically what I
gather the speech contained.
What are the chances of restoring legitimacy to constitutional theory? I think
they are excellent. My confidence is largely due to a law of nature I recently discov-
449
ered. To future generations, this will be known and revered as Bork's Wave Theory
of Law Reform. The courts addressed what they regarded as serious social problems
after World War II, and often did so without regard to any recognizable theory of
constitutional interpretation. A tradition of looking to original intention was shat-
tered. Constitutional theorists from academies, in sympathy with the courts, politi-
cally began to construct theories to justify what was happening. So was non-origina-
lism born. That wave has become a tsunami
As I understand it, that is a hurricane wave
Tsunami, and its intellectual and moral excesses are breathtaking. These theo-
rists exhort the courts to unprecedented, imperialistic adventures, but the second
wave is rising. When I first wrote on original intent in 1971, one of my colleagues at
Yale told a young visiting professor not to bother with it because the position was
passe. So, indeed, it was. But it is more than passe. It was, I think, the future as
well. There are many more younger people often associated with the Federalist Soci-
ety and who are of that philosophy and who plan to go into law teaching. It may
take 10 years, it may take 20 years for the second wave to crest, but crest it will,
and it will sweep the elegant, erudite, pretentious and toxic detritus of non-origina-
lism out to sea.
Judge BORK. That was an after-dinner speech, Senator. [Laugh-
ter.]
Senator LEAHY. It must have been one heck of a dinner.
Senator HEFLIN. Of course, that causes me concern that you have
got an agenda which would, in effect, be contrary to somewhat of
your previous statements on stare decisis.
Judge BORK. Senator, may I answer that?
Senator HEFLIN. Yes.
Judge BORK. I am not talking here at all about adhering to the
law or to precedent. I am talking here about the way constitutional
theory is taught in the law schools. You will find that most of the
writing now urges that one form or another of a moral philosophy
is the way the Constitution should be made up.
When I said that "Constitutional theorists from the academies
are exhorting the courts to unprecedented, imperialistic adven-
tures"and they areI am talking here about people of an oppo-
site point of view of philosophy of original intention are going into
teaching, and I think they are going to win the argument in the
academy. I am not talking about sweeping past precedent out to
sea. I am talking about sweeping the philosophy of non-originalism,
of making up the Constitution out of moral philosophy out to sea.
This is not at all a discussion of what we are going to do with the
cases the Court has decided.
Senator HEFLIN. Well, I have just gotten the copy of your full
speech. In the text of the way it was written in certain publica-
tions, it could be construed as this is an agenda if I get on the
Court.
Judge BORK. NO, no, Senator. This entire speech is a talk about
constitutional theorists in the academy. I said on page 3, "The non-
originalists or non-interpretive theorists now dominate constitu-
tional debate," and later on in the past that you quoted, I said,
"They are urging the Court on to greater adventures," and they
are urging the courts on to greater adventures.
But the people I dealt with, for example, I disagreed here. The
first person I disagreed with who had a non-originalist philosophy
originally when he started out was Prof. Alexander Bickel, my
good friend. This entire business is about legal academics. I think if
you read it you will see it is an argument with professors about
450
how to deal with the Constitution. That dramatic language about
sunamis and sweeping the toxis de tractus out to sea is about the
theories that are current in the academy, which I must say no
court has even gone anywhere near as far as some professors think
they should, and are urging them to, to create constitutional law.
Senator HEFLIN. Well, you mentioned some judges in it following
this concept. I want to read it, and then I may ask some more ques-
tions about it later on, the full speech.
Senator HEFLIN. It is sometimes that publications of certain per-
suasion write it as showing some sort of appeal to their readers.
Judge BORK. That could be.
Senator HEFLIN. SO it may well be that in the presentation form
it may well have been misrepresented.
I continue to look at you, your complexities, look at your opposi-
tion, and there are certain aspects of this that give me problems.
One. for example, is that you came up for Solicitor General. Most
of the writings that have been referred here today were writings
that occurred before that time. You were questioned somewhat
about some of those writings at that Solicitor General's hearing.
Senator Tunney went into it in some detail.
In effect, you admitted the writings and had some of those views
then, but said that would not bother you. You were a lawyer, and
it would not keep you from representing the Government's position
even if you had personal contrary views to a position that you
might be called upon to take as a Solicitor General.
Then you came up for hearings in the Judiciary Committee
again in 1982. I believe the Solicitor General was about 1973. In
1982 you had a hearing pertaining to the District Court of Appeals,
the position that you are on. You were questioned about some of
the writings, some of those in detail. But you were not really op-
posed. The civil rights groups, the others did not make a battle
against you.
Now, this causes me concern of why they did not make a battle
then and are making a battle now. There is some sort of concept of
statute of limitations, laches, other things of this sort that I think
a person has to bear in mind on this. Some people feel that the
issue of abortion is so dominant in this that it has influenced other
people who really are not associated particularly in that one specif-
ic field.
Now, I suppose this is an area that deserves consideration, just
like every other area. You are very complex, as I pointed out, in
previous questions as to what you will do. Frankly, I do not know. I
said I ought to be a psychiatrist, and I really think that I would
have to be more than a psychiatrist to try to look at your back-
ground and make some predictability.
But do you want to respond to this? I think this is a legitimate
area. Basically, of all of these things, your previous hearingswell,
I suppose it is on the concept of sort of like a statute of limitations.
Do you want to respond to that?
Judge BORK. Senator, do you mean why are people opposing me
now that did not before?
Senator HEFLIN. Well, should I pay attention to the fact that
they did not do it before? I suppose that is what the question is.
451
Judge BORK. Well, yes.
Senator HEFLIN. Because I intend to ask the people, the wit-
nesses that come.
Judge BORK. Yes, it is a little curious, as you say. They did not
oppose me before, and since I have been on the court, my record
has not been one they can object to. We have been over this in the
area of minorities and women. In eight cases involving substantive
issues, I have voted for the claim of the minority or the woman
seven times out of eight. In labor cases, I have a lot of votes for
labor unions and employees. So nothing that has happened in the
past 5x/2 years seems to me to provide any basis for opposition now.
I would think it was quite the other way around. They should have
been more exercised on the basis of some theoretical things I had
said before becoming a judge than they are on the things I have
done as a judge, than they should be on the things I have done as a
judge.
Senator HEFLIN. Well, of course, somewhat of an argument has
been made to me, as I asked this of certain people who are very
strongly against you. Primarily, what they are saying is this would
indicate that you will not protect the rights of minorities. They say,
well, the District Court of Appeals at the time was not nearly as
divided as it is now, and that the U.S. Supreme Court is one where
if you were to follow the agenda that they fear you follow, that you
could do terrible harm to the rights of minorities, to racial progress
that has occurred.
That is their argument. Now, do you have any response to that?
Judge BORK. Well, aside from the fact that that argument as-
sumes something about me that is not true, it also assumes that
there are four other Justices who have equally sinister views
which is not true. It overlooks my record in this field as a judge,
and it overlooks what I have said.
Now, you know, one thing, this is a hearing which you gentle-
men refer to a historic, you refer to it as one of the most complete
and so forth. I have expressed my views here, and those views are
now widely known, more widely known than any views of mine
before have ever been.
It really would be preposterous for me to sit here and say the
things I have said to you and then get confirmed and get on the
Supreme Court and do the opposite. I would be disgraced in histo-
ry. Aside from everything else, I am not going to do that.
But believe that or not, the fact is my record as a judge does not
justify the opposition of these groups.
Senator HEFLIN. Well, you know, I have looked back on a lot of
decisions, but this poll tax, this Virginia thing, gives me concern.
You basically, as I understand it, say that it was not discriminato-
ry-
Judge BORK. There was no allegation of discrimination in that
case.
Senator HEFLIN. There was no allegation? Is that the distinction
you made? Because there is no question to me that a poll tax that
required three years of history of payment, that the last payment
had to be 6 months in advance, and you had to go to the court-
house to pay it was designed to prevent the poor and blacks from
voting. I do not think there is any question that that is it.
452
Judge BORK. Senator, 1 did not discuss the case in these terms,
and the Supreme Court did not discuss the case as one in which a
poll tax that was designed to keep blacks from voting. Had they
discussed it in those terms so that it was shown to be a discrimina-
tory poll tax, it certainly should have been struck down. I have no
objection to that; not only no objection to it, I affirmatively agree
with that. I always have.
Senator HEFLIN. I have found some writings that you have made
that would indicate that you took strong positions at times which
would have meant that you believed in equal treatment of blacks,
and came at a time when the heat was almost as much as the heat
is now on the issue of abortion. That is the busing issue. I found in
the testimony that you testified before a House Committee on the
equal education opportunities in 1972and I think that was pretty
well the height of the busing fire that was raging in the country
that you testified at that time,
I would be clear about this. Congress certainly may not identify all remedies for
segregation. I do not think Congress could even completely ban busing as a single
remedy. As the court noted in the strong opinion involving the North Carolina
busing statutes, there are cases in which busing is essential to the vindication of a
constitutional right. I would think it highly doubtful that Congress would ban
busing and have that statute stand up in court.
This would indicate not only your stand on busing, but it would
indicate that the Supreme Court has the constitutional right to
structure remedies, and you do not feel that Congress can take
away from the court the availability of judicial remedies in carry-
ing out the decisions.
Now, do you want to comment on that particular one?
Judge BORK. Well, Senator, yes. I have never opposed busing.
The only thing I ever opposed was busing that went far beyond the
original violation of law. It was much beyond what was necessary
to cure the violation of law. That is a standard principle, as we
both know, of equitable remedies. The remedy is as broad as the
violation.
Now, I filed a brief like in the Austin, Texas, case which was re-
manded, so the Supreme Court did not decide the issue. But later,
in the Carter administration, in the Dayton busing caseDayton I,
I think it wasthe Carter administration filed a brief signed by
Griffin Bell and by Drew Days, the Assistant Attorney General for
Civil Rights, which took the identical position I had taken on this
subject; and the Supreme Court accepted it eight to nothing, the
principle that you do not create a remedy much broader than
needed to cure the effects of the violation.
The position I have taken on that is now the law of the land.
The CHAIRMAN. Senator, make this your last question, okay?
Senator HEFLIN. Well, I will just stop with that.
The CHAIRMAN. NO, go ahead.
Senator HEFLIN. That is all right. I would get into another one
which would probably take a longer time.
The CHAIRMAN. Judge, one point of clarification I would like to
haveas might other membersbefore I yield to the Senator from
New Hampshire. That is the constant comparison by your propo-
nents and opponents of your record on the circuit court and what it
might or might not be in the Supreme Court. As an originalist,
453
what is your view of the limitations that a circuit court judge has
relevant to Supreme Court precedent? Could you have overruled, at
any point as a circuit court judge, any standing constitutional prin-
ciple enunciated by the Supreme Court?
Judge BORK. Of course not. I could not overrule it, Mr. Chair-
man, but I am certainly free in many cases toyou know, these
cases, as has been pointed out here, are not all the same. They
come down with different gradations. In a number of those cases, I
could have gone the other way and written an opinion that
The CHAIRMAN. I am not suggesting you could. Could you as a
Supreme Court Justice disregard precedent if you so chose?
Judge BORK. NO, not if I so chose. In a number of speeches you
have, I have said repeatedly that there are many precedentsthese
are speeches I made before I came herethat are simply too much
part of the fabric of the nation.
The CHAIRMAN. NO, that is not the point. We will get into that
later. I do not want to take too much time. As I understand the law
as a lawyer, a Supreme Court Justice is not bound as a matter of
constitutional law to accept the precedent that has gone before if
he or she has another reason or rationale to disregard it. I am not
saying you do. I just want to establish the principle.
Judge BORK. That is entirely true. Every Justice I have ever
heard of and every legal scholar I have ever heard of says that the
Supreme Court may overrule prior cases. But they all place limita-
tions on that.
The CHAIRMAN. But a circuit court judge may not overrule con-
stitutional principles stated by the Supreme Court. Is that not also
correct?
Judge BORK. That is also correct. It depends on the application
on the principle.
The CHAIRMAN. I understand.
Judge BORK. There is often a lot of leeway in there.
The CHAIRMAN. I just want to make sure, because I think we are
confusingnot you, weare confusing people, and I want to make
sure I understand that a circuit court judge cannot under the law
overrule an established principle that has been laid out by the Su-
preme Court in the past. It cannot reject that principle. But a Su-
preme Court Justice could if he so chooses. I am not saying what
you might choose to do. I just want to make sure we understand.
Judge BORK. Yes.
The CHAIRMAN. The Senator from New Hampshire. I thank him
for his indulgence.
Senator HUMPHREY. YOU are quite welcome since you indulged
me. I apologize for my tardiness. I had the pleasure of escorting
some of our counterparts from Pakistanthat is, democratically
elected representatives of their Parliamenton to the floor of the
Senate this morning.
It is always nice to examine a bright spot in the world, is it not?
There is a nation that has risen from martial law and in which de-
mocracy and the rule of law, the law made by legislators, not by
generals or judges, is on the ascendance.
Well, Judge, this is day four and the game is in the fourth quar-
ter, and I think you are doing very well, indeed. The nuance is
coming out, the nuance of Judge Bork the judge and Judge Bork
454
the person. I was impressed by one of those nuances which came
out. I have forgotten which Senator on the Democratic end brought
it up, but it was about the fact that you as a very young lawyer, a
junior member of your firm, confronted some crusty old curmudg-
eons with 30 or 40 years' service to that firm, senior partners, and
said, look, this Jewish quota business is dumb. I am putting words
in your mouth. You were probably a little more diplomatic as a
very junior member, but you confronted the establishment on
behalf of a man you did not even known, you barely knew, but
whose credentials, I guess, impressed you. That vignette is impres-
sive to me.
Here is another one, published yesterday in an op-ed piece by a
man named Stewart A. Smith, who practices law in New York
City. I do not know Stewart Smith from Adam, any more than I
knew you from Adam until you walked into this room the other
day. It is entitled, "Bork Deserves to be a Justice."
Mr. Chairman, I would ask unanimous consent that this piece be
printed in the record.
Senator KENNEDY. Without objection.
Senator HUMPHREY. Thank you.
[Article follows:]
455
Bork Deserves
To Be a Justice
this easy wayout of what was a diffi-
By Stuart A. Smith cult question. He went on to state that
Justice Douglas's question "properly
In Robert H. Bork, President Rea- tests the limits of our theory." He then
gan has chosen one of t he-most distin- answered the question
guished legal minds of our generation I no* longer recall the substance of
to serve on the Supreme Court. But the answer, but I do recall the nature
instead of accolades, the nomination of the process: two powerful minds
has provoked a variety of ill-informed engaging in a demanding exchange in
reactions. which each rejected a simple solution
I served as tax assistant under and acknowledged and responded to
three different Solicitors General, an opposing point of view witrf unfail-
during both Democratic and Republi- ing candor and courtesy. A man less
can administrations, including Judge concerned with the pursuit of truth,
Bork's tenure from 1973 to 1977.1 can less committed to his obligation to
attest on the basis of personal obser- help the Court reach the legally cor-
vation that his conduct as the Govern- rect decision, and more concerned
ment's chief lawyer before the Su- as sometimes lawyers are simply
preme Court was marked by intellec- with winning a case, would have
tual honesty, integrity and a profes- avoided such a question.
sionalism much, appreciated by the A second episode illustrates ^ a n -
Court itself. other way his professionalism and in-
Two instances illustrate these qual- tegrity A black man had been con-
ities In 1974, a suit was brought by an victed in a Southern stale of various
antiwar group to challenge as im- drug and ' criminal income tax
proper the practice whereby mem- charges. In his petition for Supreme
bers of Congress served ia the armed Court review, the defendant claimed
forces' reserves. The Solicitor Gen- that the Government's principal wit-
eral successfully opposed the suit on ness had committed perjury.
various grounds, including "justicia- As the lawyer responsible for
bility" a doctrine that permits the presenting the Government's tax
courts to dismiss cases that are not cases to the Supreme Court, I di-
suitable for judicial resolution. Here, rected that an independent evaluation
the claim of'justiciabilny relied upon be made, and concluded that the de-
the constitutional doctrine of scpara- fendant's claim was factually cor-
rect. Accordingly, I recommended to
Mr. Bork that the Government con-
fess error and ask the Supreme Court
to return the case to the court of ap-
'Intellectual peals to consider whether the convic-
tion should be reversed.
honesty, The Solicitor General unhesitat-
ingly agreed with my recommenda-
integrity.' tion He took this principled action de-
spite the strong protests of the.local
United States Attorney. As Mr. Bork
saw the matter, the Government's
tion of powers that each house of criminal prosecutions had to be con-
Congress is td regulate ihc practices ducted with the utmost fairness and
of its members rather than having the Government owed a special obli-
those practices regulated by a coordi- gation to the Supreme Court to admit
nate branch of Government, such as when ihe process had been defective,
(he courts whatever the costs might be. A lesser
When Mr Boik advanced the Gov- man, again, would have yielded to in-
ernment's justiciabilny point before stitutional pressures and deprived a
the Court, Justice William O Douglas, black man of his rights in order to
who rarely spoke, challenged the argu- protect the reputation of another Fed-
ment He asked whether, in the Gov- eral officer
ernment's view, a sun to recover back It is fortunate when a person of
pay by a member of Congress who Judge Bork's demonstrated ability
was dismissed Irom ine reserves comes to r,ticr.a! prominence \i *s
would also be nonjusuciable, given the even more fortunate when a person
fact that suits for back pay are rou- of Judge Bork's professionalism
tinely handled by the Federal courts does a, professionalism that
Before Mr Bork could answer, an- guides him always, when dealing
other Justice observed that there was with the powerful and the powerless,
no evidence that a back pay claim had to act with the utmost honesty and
been filed in this particular case. The responsibility. Judge Bork would en-
Solicitor General agreed but rejected hance, indeed" grace, the important
work of our nation's highest tribunal.
Stuart A. Smith practices lax law in The Senate should act speedily to
New YorkCitv. confirm his nomination tI
456
Senator HUMPHREY. Thank you. Let me just read a few passages

from this by Stewart Smith.
I served as tax assistant under three different Solicitors General during both
Democratic and Republican administrations, including Judge Bork's tenure from
1973 to 1977, and I can attest on the basis of personal observation that his conduct
as the Government's chief lawyer before the Supreme Court was marked by intellec-
tual honestly, integrity and a professionalism much appreciated by the court itself.
Then skipping on to the last three or four paragraphs,
A second episode illustrates in another way his professionalism and integrity. A
black man had been convicted in a southern State of various drug and criminal
income tax charges. In his petition for Supreme Court review, the defendant
claimed that the Government's principal witness had committed perjury. As the
lawyer responsible for presenting the Government's tax cases to the Supreme Court,
I directed that an independent evaluation be made and concluded that the defend-
ant's claim was factually correct.
Accordingly, I recommended to Mr. Bork that the Government confess error and
ask the Supreme Court to return the case to the court of appeals to consider wheth-
er the conviction should be reversed.
So here is the situation. The spring is all wound up. The Govern-
ment is already to go in the case before the Supreme Court, and
here comes this little junior attorney to Robert Bork who said,
Wait a minute. The defendant is right. The defendant is right. We had better pull
in our horns as embarrassing as it may be.
Continuing,
The Solicitor General Bork unhesitantly agreed with my recommendation. He
took this principled action despite the strong protests of the local U.S. attorney. As
Mr. Bork saw the matter, the Government's criminal prosecutions had to be con-
ducted with the utmost fairness, and the Government owed a special obligation to
the Supreme Court to admit when the process had been defective, whatever the cost
might be. A lesser man would have yielded to institutional pressures and deprived a
black man
It does not matter what his color was, but that is what Smith
says
Deprived a black man of his rights in order to protect the reputation of another
federal officer. It is fortunate when a person of Judge Bork's demonstrated ability
comes to national prominence.
Indeed. My remark.
It is even more fortunate when a person of Judge Bork's professionalism does, a
professionalism that guides him always when dealing with the powerful and the
powerless to act with utmost honesty and responsibility. Judge Bork would enhance,
indeed grace, the important work of our nation's highest tribunal.
Well, I can tell you, you certainly graced the confines of this
marble inquisitorial hall these last 4 days, Judge.
Judge BORK. Thank you.
Senator HUMPHREY. SO I have come to admire you and respect
you, as I expected, but I have also come to be very fond of you as a
human being. You have stood the attacks well. You have been
under fire. Some very stinky stink bombs have been dropped on
your head these last 2 months, including some in this room, I
regret to say.
Here we are in the fourth day, and perhaps it is worth a brief
recapitulation of where we are.
It is interesting to me and I am sure it is interesting to you, that
your antagonists, your opponents insist upon focusing almost exclu-
sively on your writings as a college professor. They say that the
457
cases you have decided, your record on the second-most important
court in the country over the last 5 years is irrelevant. We have
demolished that charge because, in fact, circuit court judges do
have a lot of leeway in the sense that cases do not come before you
in neat little packages that fit into neat little Supreme Court prece-
dent pigeonholes. There is a lot of latitude.
In any event, you said that you would have decided all of those
cases the same wayI am speaking of the seven of eight civil
rights cases in which you upheld the claim of a minority or a
woman plaintiff or personthat you would have decided all of
those cases the same way had you been on the Supreme Court.
Nonetheless, the point I am trying to make is this, that the oppo-
nents insist upon focusing on your record, almost exclusively, your
record as a college professor and your writings, while suggesting
that your record as a judge is irrelevant, that your record as Solici-
tor General is irrelevant, with the exception of Watergate, of
course. It is all irrelevant except for the Cox episode. That is rele-
vant. That is an interesting selectivity, isn't it?
Well, we have established that, contrary to the remarks about no
room at the inn and no place in the Constitution and all that balo-
ney, that you stood for minority and women parties in the seven of
the eight cases that came before you in your capacity on the D.C.
Circuit Court where substantive civil rights issues that were at con-
test.
I want to focus further, and this will duplicate, I think, overlap
somewhat the fine efforts of Senator Hatch yesterday, looking at
some of these amicus briefs that you filed. After all, the charges
against you, the false charges, have been repeated over and over so
it does not hurt to overlap a little bit in your defense.
Now, what about this parallel charge that your record as Solici-
tor General does not matter because you were working for a client
and, implied in that, is that you just followed orders? Is that so?
Judge BORK. Well, there is latitude, but in addition to that, I
think, Senator, it should be pointed out that insofar as I respected
my function as Solicitor General and lived within the limits of that
function, that is the way I have always tried to approach any job.
People ought to be reassured by the fact that I lived up to my view
of the function of that job and did not do something else. Solicitors
General can, if they wish, impose their policy views on other people
in the Government and some have done that.
Senator HUMPHREY. In an case, in the matter of filing amicus
briefs, that is a matter of complete latitude to the Solicitor Gener-
al, is it not?
Judge BORK. I would not say complete but you certainly have
much more
Senator HUMPHREY. The most.
Judge BORK. Much more latitude there than you do when you
are defending the Government as a client.
Senator HUMPHREY. I want to go through some of these cases in
which you filed an amicus brief and if in any of those cases you did
so because someone twisted your arm or you were under fire or in
any way under compulsion, please tell me because I will dismiss
the case. I have been hanging around these lawyers too much you
458
see, I am beginning to talk like them. I will throw out that exam-
ple.
By the way, I could never be a lawyer or a judge because I
cannot stand paperwork and I have a hell of a time keeping all this
straight.
Judge BORK. Well, if that is the criterion, Senator, I am in trou-
ble too, because I cannot find anything here either.
Senator HUMPHREY. All right. General Electric v. Gilbert was a
1976 case in which you filed an amicus briefI should have a little
beep here for the sake of lay people like me. An amicus brief is a
so-called friend of the court brief. This is for the TV audience obvi-
ously.
Judge BORK. It is where the party filing the brief is not a party
to the case, but wants to file a brief to make views known.
Senator HUMPHREY. Yes. It is a gratuitous effort, in a sense. Not
required.
Judge BORK. NO.
Senator HUMPHREY. The person filing the amicus brief is in no
way a party on either side of the case.
In General Electric v. Gilbert, that was a 1976 case, you filed a
brief arguing that the exclusion of pregnancy-related benefits from
an employer's disability plan violated the sex discrimination provi-
sions of title VII of the Civil Rights Act. The side on which you
filed an amicus brief lost, did they not? Do you want to tell us? Do
you remember the details of this case?
Judge BORK. All I remember is I have a note here that six jus-
tices rejected my argument. It was an argument that I did not have
to file because it was a controversial position.
Senator HUMPHREY. In other words, you were advocating a
broader interpretation of title VII of the Civil Rights Act than the
Supreme Court was willing to embrace?
Senator HUMPHREY. With respect to pregnancy benefits in sex
discrimination law, is that right?
Senator HUMPHREY. In other words, you were standing with an
individual. This was an individual person, right?
Judge BORK. I was. I should not take too much credit for this.
The Civil Rights Division wanted me to do this and I went along
because I thought it was a good argument.
Senator HUMPHREY. YOU were under no compulsion?
Judge BORK. Oh, no. I was under no compulsion.
Senator HUMPHREY. YOU thought it was the right thing to do?
Judge BORK. Yes.
Senator HUMPHREY. And this was only an amicus brief but, none-
theless, you took the position that a broader application of title VII
of the Civil Rights Act was in order in this case and the Supreme
Court said, to the other parties and, indirectly to Bork, you are
wrong.
Judge BORK. Yes.
Senator HUMPHREY. You're trying to apply the law too broadly.
It is interesting to note that Justice Powell, the man whom you
will replace if confirmed, voted to reject your expansive interpreta-
tion. It is interesting to note also that Justice White, President
459
Kennedy's nominee to the Supreme Court, also rejected the expan-
sive interpretation which you argued in your brief. Nobody ques-
tions the commitment of Justices Powell and White or President
Kennedy to equality before the law for all of our citizens.
Let's talk about another 1976 case, Runyon v. McCrary. You filed
an amicus brief arguing that Section 1981 of the Post-Civil War
Civil Rights Act could be applied to private schools which excluded
qualified children because they were black. Do you recall any perti-
nent details of that?
Judge BORK. No, Senator. I remember that I filed the brief but I
do not recall any more details of the matter.
Senator HUMPHREY. Well, the short of it is that your views pre-
vailed; that is, the side on whose behalf you filed the amicus brief
prevailed and the Supreme Court announced, for the first time,
that Section 1981 did, in fact, applyfirst time in who knows how
many decades
Judge BORK. Ever, I think.
Senator HUMPHREY. Beg your pardon?
Judge BORK. The first time ever.
Senator HUMPHREY. Ever, yes, since the law was passed, which
was sometime after the Civil War apparently. Before I got here.
For the first time that Section 1981 is a very important remedy in
the area of race discrimination and that was, obviously, a signifi-
cant achievement for civil rights.
Judge BORK. I think it is probably worth noting that that posi-
tion, which the Court accepted, would also bar the racially-restric-
tive covenant that was involved in Shelley v. Kraemer.
Senator HUMPHREY. Again, Justice White, President Kennedy's
nominee, voted against the decision in the Runyon case. He was on
the losing side and again, point out that there is no grounds for
accusing him of racism or the President who appointed him. The
next case was Lau v. Nichols, a 1974 case, in which a Chinese
youngster argued that a public school receiving financial assist-
ance, federal financial assistance apparently, violated title VI of
the Civil Rights Act by failing to establish a program to assist non-
English speaking students, such as Chinese and Hispanic, to cope
with the English curriculum.
You filed a brief on behalf of this young Chinese student, argu-
ing that the schools' failure to help minorities with their language
problems in the schools, violated title VI. Do you want to add any
details to that?
Judge BORK. NO, I just recall being told that they had these class-
es of Chinese children in the school system who were not being as-
sisted to learn English and they were sitting there and the curricu-
lum was going right by them. They did not understand what was
being said in the classroom.
Senator HUMPHREY. What is especially interesting about this
case is that, in a sense, you were sticking out your neck because
this Chinese boy's claim had been rejected by two lower courts that
had previously heard the case and so you went, in your amicus
brief, beyond the subtle law, at least to the extent that the lower
courts had settled it. Is that not right?
460
Senator HUMPHREY. Nobody put a gun to your head in any of

these cases? Nobody said they would call you a racist or a sexist or
an ethnicist if you did not do these things?
Judge BORK. No. The Solicitor General is fairly independent.
Very rarely does anybody above him, such as the Attorney Gener-
al, get involved in a case. Occasionally, but very rarely.
Senator HUMPHREY. Other cases, Albemarle Paper Company v.
Moody, 1975. In that case, the court established the important
point that certain verbal intelligence tests, which were not validly
job-related, could be barred as discriminatory against blacks. Do
you remember the details of that case?
Judge BORK. NO, I really do not, Senator. I remember there was
such a case but I do not remember any details about it.
Senator HUMPHREY. AS a matter of fact, in that case, Justice
Blackmun and Chief Justice Burger concurred with most of the
ruling, but felt that the decision went too far in setting very strict
standards than an employer had to meet in validating employment
screening tests. In other words, Justices Burger and Blackmun did
not want to go as far as you argued in your amicus brief. I have
not heard anybody call or allege racism on the part of Blackmun
and Burger.
Another important case where you submitted an amicus was
Franks v. Bowman Transportation, 1976. In that case, in your brief,
you sided with black class action plaintiffs, seeking to establish
that minority victims of employment discrimination could be
awarded retroactive seniority relief. That was 11 years ago and I
should not keep asking you if you remember the details.
I am putting you in a bad light so do not ask me any questions
like that. I do not want to be put in that light myself, even with
respect to legislation of last year, because as soon as you dispose of
one pressing issue, two more fall on your head around here and it
all becomes a blur after just a few months, not to mention years.
To get back to Franks v. Bowman, a class action suit on behalf of
black citizens, Justice Powell, while concurring a part of the major-
ity opinion, dissented against the Court's very broad interpretation
of retroactive seniority rights, as did Chief Justice Burger and Jus-
tice Rehnquist. Nobody has questioned their commitment to civil
rights laws.
Let's look at one more herethis is not an amicus case, but tells
the same story, the case United Jewish Organizations v. Carey
Governor Carey of New York.
Judge BORK. I argued that one personally. I not only filed a brief,
I argued it in the Court.
Senator HUMPHREY. Yes, you argued it. The United States, obvi-
ously, was a party to the case. Oh, I beg your pardon. That is
wrong.
Judge BORK. NO, I think we were involved because it was a
voting rights case, I think.
Judge BORK. And constitutional issues got into it.
Senator HUMPHREY. I see. So, in any event, you argued the case.
You would not have argued the case if the U.S. were not a party,
would you?
461
Judge BORK. I have argued a case as amicus. I argued the death
penalty cases as amicus.
Senator HUMPHREY. But, either in the case of an amicus or in
the case where the United States is a party, those are the only
Judge BORK. Yes, that is correct.
Senator HUMPHREY. In any event, United Jewish Organizations
v. Governor Carey, which, as you said, you personally argued before
the Supreme Court and you defended a New York State re-appor-
tionment plan designed to assure effective black voting, by creating
districts with 65 percent non-white majorities. You also argued
that such government action, involving a remedial race-conscious
remedy was not, per se, unlawful, under the 14th or the 15th
amendment. It goes without saying that many conservatives might
take strong issue with the scope of that remedy in that case.
Judge BORK. I think they did.
Senator HUMPHREY. Can you tell us why you decided to take that
case on?
Judge BORK. AS a matter of fact, it was purely a legal decision. I
thought that was the law and the way the law was intended to go
and I did not think that the 14th and 15th amendments, in this
kind of a case, prevented a race-conscious remedy in favor of
blacks. So, I argued it.
I should say, Senator, when I had an objection to a case I had to
take on, but I had to defend it for the Government, I would not
argue it personally. I would sign the brief, but I would send some-
body else over to do the arguing.
Senator HUMPHREY. In any event, that case was successful, was
it not?
Judge BORK. Oh, yes, we won. Chief Justice Burger dissented
from the opinion. He did not agree with you. Well, the point is, of
course it is silly to ask if all of these other Justices are racists, or
bigots, or narrow-minded. The point is that these cases are com-
plex, and honest men and women of integrity can sometimes differ,
honestly, on very fine points of law.
I think that is a point that we sometimes overlook a little bit,
that reasonable men and women can differ, and that these issues
that we have been discussing are complex, and if they were not dif-
ficult they would not be issues, and there would not be arguments
about them, and there would not be cases to decide.
Senator HUMPHREY. Let's turn to criminal law. We have not
done much in that area, in the sense of criminal law as it relates to
individual citizens.
The President's Working Group on the Family said, in its report
on the family last year, "Crime is the crudest tax of all on the
American family, a regressive levy that burdens those least able to
bear its exactions." How very true.
And I say this is an issue of importance to individual citizens be-
cause the statistics show that nearly every one of us, at sometime
in our life, will be a victim of crime, and that is if we are lucky,
because lots of people are multiple victims of crime.
That is, they are victims of criminals on multiple occasions,
whether it is the breaking and entry of an automobile, or a home,
or assault, or fraud, or murder. It is very, very common, and it is a
very real threat to every American. I will give you a case.
86-974 0-89-17
462
Just a few doors down from where I live here in the DistrictI
should not say live here. I sleep here. I live in New Hampshire. But
anyhow, a few doors down from where I sleep after I totter on
home from this institution, there is a lady who is living in the
home her father built, many years ago, obviously.
She is a lady, a woman who works outside the home. She is a
single person. And her home has been broken into, not once, not
twice, three times, to the point where she had to literally put steel
bars on her windows. The home her father built, in which she has
lived her entire life. She lives behind bars in her own home.
And in some of those robberies, she has lost things of very great
personal value, not monetary value, necessarily, I do not know, but
things thatyou knowheirlooms, family items.
And so that is not an isolated case. We have got lots of elderly
people living behind chained doors in fear of their safety. We have
got parents all over this country who worry about their kids on the
way home, or on the way to school.
Ordinary citizens, able-bodied citizens worry about walking down
a dark street at night. So this issue of crime is a very real and
practical concern to our citizens.
Now I want to ask you: we have heard a lot about the rights of
criminals here so far, and that is not an unimportant thing, be-
cause we are only as secure as the least secure member of our soci-
ety in our rights.
But let's talk about the rights of law-abiding citizens. What re-
sponsibility do judges have to protect society and individual citizens
from criminals?
Judge BORK. Well, judges can do a limited amount, of course, but
I think a judge has two responsibilities. One is to ensure that any
accused gets a fair, completely fair trial, so that he is not preju-
diced in any way.
But the other responsibility is not to elaborate legal doctrine so
that the appeal becomes a game, and somebody gets off on a techni-
cality, which has nothing to do with fairness.
That is a very broad statement and I am not an expert on crimi-
nal law, but I have participated in reversals of convictions and of
reversals of sentencing because the trial had a serious error in it
which meant we could not be sure it was fair, or because the
double jeopardy clause was violated.
On the other hand, I do not go looking for a new wrinkle that
has nothing to do with the basic fairness.
Senator HUMPHREY. YOU say that thewell, how do we phrase
this? Do you think that criminals are adequately protected by the
law and the Constitution, and the complex rules that have been, in
some cases, invented by judges, and which have become a part of
the fabric of our system? Do you think that has gone about far
enough, or are you proposing that it should go further?
Judge BORK. Senator, I have participated in some criminal cases
as a judge, and I have argued some as Solicitor General, but I am
by no means an expert on the entire field of criminal law, and I
would not want to make a cosmic judgment about the overall state
of criminal law and procedure as it now stands. I am just not com-
petent to make that judgment.
463
Senator HUMPHREY. The majority of cases which come before the

Supreme Court are criminal law cases, are they not?
Judge BORK. I do not think so, Senator. At least that was not my
impression when I was spending time arguing up there. There are
very significant criminal law cases that come up, but there are all
kinds of cases that come up there.
Senator HUMPHREY. I will give you an example of an outrageous
disposition of a suitwell, an outrageous disposition of a criminal
case. It is the 1984 case of Nicks v. Williams. It came out of Iowa.
A 10-year-old little girl disappeared on Christmas Eve. It turned
out she had been brutally murdered by a man named Robert Wil-
liams.
Williams voluntarily surrendered to the police. He was read his
rights. He did not confess, and, on the advice of counsel, he re-
mained silent.
While he was in the custody of the police, one of the officers de-
scribed how difficult it would be to find the little girl's body. See,
he had already confessed, but they had not found the body nor had
he revealed its location.
How difficult it would be because snow was falling, and how dis-
tressed the parents would be, on top of their loss, if the child's body
could not even be given a decent burial.
The officer did not question Williams, just pricked his conscience
a little bit, and Williams later, subsequently volunteered the loca-
tion. The body was found and evidence was used to convict Wil-
liams of the murder.
And the court found that in any event, the body would have been
found even without Williams' cooperation. He was convicted. The
court of appeals reversed the conviction on the theory that the
State had to prove that the officer had not acted in bad faith in
appealing to Williams' conscience.
Williams had not been interrogated, had not been coerced in any
way, he had been read his rights, but that was not good enough for
these judges, or, a majority of them anyway.
My time is just about up.
The CHAIRMAN. GO ahead and finish.
Senator HUMPHREY. I am not asking you to re-hear the case, or
to reach a verdict on this, but how far should judges go in protect-
ing criminals at the expense of society? I am coming back to my
original question, you did not answer it, and I do not know that
you would be able to now. But I hope that you can give us some
indication of where you are because I think, rightly, the American
people have just about had it with all of these new inventions to
protect criminals.
Judge BORK. Well, that is a very sensitive subject for me to speak
to here, Senator, and therefore, I think I have to confine myself to
the remark that a judge has to make sure that the accused person
gets an entirely fair trial.
But beyond that, I do not think the scale should be weighted on
the side, unfairly weighted on the side of a criminal. But I cannot
say any more than that, and that is a very general statement, and
I realize it is unsatisfactory.
And now that I am speaking off the cuff about a matter about
which I really am not expert in any way, I probably should not
464
have said that much because I am not sure I said it as well as I

should have.
Senator HUMPHREY. Have you done any writing? I hate to bring
up the issue of articles, but have you written anything on this?
Judge BORK. I have written nothing about criminal law, Senator.
It has just never been one of my specialties.
Senator HUMPHREY. Thank you. My time is up. Thank you very
much.
The CHAIRMAN. Thank you very much. Judge, we will now take a
break for 10 minutes, until 25 after, and then we will begin ques-
tioning again. Or would you like a longer break?
Judge BORK. NO, no. That is fine.
The CHAIRMAN. The hearing will recess for 10 minutes.
[Recess.]
The CHAIRMAN. Judge Bork, let me discuss howassuming the
ranking member agreeshow we will finish out the morning and
then move into the afternoon.
We are now finished with the last round of questioning, and we
will begin again. Some members have questions, not all will, and
some have questions that will not last a full 30 minutes.
So what I am going to do is to withhold asking my questions at
this point.
Senator Metzenbaum is next in line. He tells me he has some
questions, maybe not many, and then I will yield to Senator Thur-
mond who would be next, alternating again.
Well, actually, I guess I should yield, since this is the next round,
I will yield to Senator Thurmond for his questions, for about 10 or
15 minutes, and then yield to Senator Metzenbaum, who is in
about the same situation.
Then we will break for lunch, and then we will come back and
complete the next round of questioning.
So I will yield to Senator Thurmond for his round, and then to
Senator Metzenbaum.
Judge Bork, I am sure this is getting old by now, but I would like
to ask you one more time to tell the committee how you differenti-
ate between your writings which may be critical of a number of Su-
preme Court decisions, and what your approach is to the law in
your capacity as a judge.
Judge BORK. Well, Senator, I think it is important to have that
straight, because I think if one begins to identify a professor's writ-
ings with what he, or she will do as a judge, I am afraid there are
going to be a lot of young professors watching these hearings, who
will decide that being non-controversial is the best approach to a
career.
But as a matter of fact, a professor is absolutely free to specu-
late, to think, to try out arguments. As my good friend Alex Bickel
used to say, all writing is an experiment, and that is what it is.
You start a debate, and then some of your stuff stands up, some of
it does not.
As a judge, you are responsible to the law, and not to some spec-
ulative theory you once developed. You are responsible for continu-
ity, you are responsible for justice, you are responsible to be com-
465
passionate to individuals, none of which necessarily appears in a
professor's writing.
As I have said before in these hearings, and I have said in pri-
vate to one SenatorSenator Specterin the classroom nobody
gets hurt. In a courtroom, somebody always does. And that is a
wholly different function than being a professor.
Senator THURMOND. Judge Bork, you have criticized certain Su-
preme Court decisions in the area of first amendment rights and
the equal protection clause, as well as others.
You have also indicated that some of these decisions are accepted
law, and should not be disturbed by the Supreme Court.
This has been taken by some as a change in your views, in order
to enhance the probability of your confirmation.
I do not believe this is the case. However, would you comment on
this criticism.
Judge BORK. From the beginning of these hearings, Senator, I
have said that I think the ultimate touchstone for a judge is the
intention of the lawmaker, and in constitutional lawin fact it is
not the intention, it is the original understanding of what that pro-
vision meant.
And in constitutional law that means what the ratifiers under-
stood when they ratified the Constitution. But I have also said that
the law has developed, and the nation has developed, and decisions
have been made around which too much has been built, and
around which too many expectations have clustered, for them to be
overruled.
Now I might disagree with a lot of decisions, over time, although
as I have said, the large majority of Supreme Court decisions I
agree with. But I have given examples here, you know, of cases
that just are not to be overruled. I am trying to remember the ex-
amples.
I have given examples in my speeches. The commerce clause
cases cannot be overruled. You cannot cut the commerce clause
back.
The legal tender cases authorizing paper money cannot be over-
ruled, no matter what the original understanding was. The equal
protection clause cases cannot be overruled. I mean, the extension
of the equal protection clause cannot be overruled.
I have mentioned some first amendment cases that cannot be
overruled. I have mentioned a lot of cases that I think are now
part of our law, and whatever theoretical challenges might be lev-
elled at them, it is simply too late for any judge to try to tear it up,
too late for a judge to overrule them.
Incorporation doctrine I mentioned this morning in connection
with Senator Heflin's questions, is also something that is now thor-
oughly established. I do not know that incorporation is contrary to
original understanding, because the evidence goes both ways, but if
it is, nonetheless, that doctrine is established.
Senator THURMOND. Judge Bork, I happen to agree with your
philosophy of judicial restraint. However, I think it would be help-
ful to the committee, and informative for the American people, if
you will explain the dangers that occur to our form of government
when judicial activism occurs.
466
Judge BORK. Well, if a judge begins to do things, begins to decide

things without a warrant in the constitutional text, and its history
and its structure, in the line of precedent that has been built up
if he begins to do things, strike down laws, that he has no constitu-
tional warrant, in the sense that I have described, then he en-
croaches upon democratic processes.
He encroaches upon the proper domain of the legislature. And
one of the freedoms of our people is to vote for representatives who
will make policy, and a judge should stop that policymaking when
it is contrary to the Constitution.
He should allow it when the Constitution allows it. This is basi-
cally a democratic country, and a judge should not make it less so,
without a warrant in the Constitution.
Senator THURMOND. Judge Bork, a great deal of concern has
been expressed over your book, "The Antitrust Paradox," which
you wrote in 1978.
I think it is interesting to note that, as you stated yesterday,
when you wrote this book 9 years ago, you were an amateur econo-
mist. The book was premised on the question of what best services
the consumer, and as you readily admit, some of the arguments
you put forth then might be wrong today.
You did not think so at the time, but as economics advance, ideas
change. Isn't that correct, Judge Bork?
Judge BORK. That is entirely correct. A desire that judges adopt
the Sherman Act to evolving economic understanding appears in
the legislative history of the Sherman Act, and also appears in the
rule of reason, which is the basic rule of the Sherman Act, laid
down by Chief Justice White in 1911 in the great cases involving
Standard Oil and American Tobacco.
Senator THURMOND. Judge Bork, I would like, however, to clarify
some of the concerns raised as a result of your book.
For example, you state that the goal of antitrust is consumer
welfare. Some have indicated that you seem to be against lower
prices, say, at discount stores.
How can you be for consumers if you do not like discount stores?
Judge BORK. Senator, I spend a lot of my time looking for dis-
count stores. I do like discount stores. Typically, in a market, there
will be consumers who respond to lower prices, other consumers
will respond to the provision of service or information.
One manufacturer might decide to fix the prices of his retailers
on his products alone, in order to encourage those retailers to pro-
vide service and information, compete through service and infor-
mation.
Another manufacturer will go for the segment of the market
which is responsive to price, and will not fix the prices of his retail-
ers, and in that way, consumers get a choice between a low price or
between the provision of service and information.
Sometimes, the same manufacturer will do both. He will have
one brand that is price-maintained and one brand that is not, so he
can hit both segments of the market.
I certainly would not advocate anything that would result in
wiping out discount stores, they are a very valuable institution,
and I personally look for them.
467
Senator THURMOND. Thank you, Judge. Thank you, Mr. Chair-

man. I will reserve any other questions for later.
Senator METZENBAUM. Judge Bork, in this hearing we have al-
ready talked about your views on one sterilization case.
There is another one I want to discuss with you, the American
Cyanamid case that you decided in 1984.
The Occupational Safety and Health Act, a statute that Congress
passed to protect the workers of this country says that, quote:
"Each employer shall furnish to each of his employees a place of
employment free from recognized hazards that are likely to cause
death or serious physical harm to his employees." End of quote.
American Cyanamid operated a department which exposed
women to lead, a substance which causes harm to a developing
fetus. The company offered the women of the department a horri-
ble choice.
The women could quit their jobs, or, they could keep their jobs
and be sterilized.
The company called this a fetus protection policy. It was really a
policy of be sterilized or be fired. You wrote the opinion allowing
the company to maintain this policy.
Judge Bork, there were 30 women working for the Cyanamid
company when the company adopted the be-sterilized-or-fired
policy. This policy forced 23 of those women to be sterilized or be
fired. Five were actually sterilized before the lawsuit was filed. Cy-
anamid forced over 75 percent of their women employees to choose
between their jobs and the possibility of ever having children.
Judge, I must tell you that it is such a shocking decision, and I
cannot understand how you as a jurist could put women to the
choice of work or be sterilized, and I would think you are entitled
to comment on how you arrived at that decision.
Judge BORK. I would be glad to, Senator. I am just trying to
recall the case. That was a unanimous decision joined in by Judge
Scalianow Justice Scaliaand Senior District Judge Williams
from California. What we did, as I recall, was affirm the decision of
the Occupational Safety and Health Administration. That is,
OSHA, the agency which is responsible for protecting safety in the
workplace had already decided this way and we affirmed it.
Now, as I wrote, it is important to understand the context in
which this case arose and the task that is set for this court. Ameri-
can Cyanamid found and the administrative law judge agreed that
it could not reduce ambient lead levels in one of its departments
sufficiently to eliminate the risk of serious harm to fetuses carried
by women employees.
The company was thus confronted with unattractive alternatives.
It could remove all women of child bearing age from that depart-
menta decision that would have entailed discharging some of
them and giving others reduced pay at other jobsor the company
could attempt to mitigate the severity of this outcome by offering
continued employment in the department to women who were
sterilized.
The company chose the latter alternative and the women in-
volved were thus faced with a distressing choice. Some chose steri-
lization. Some did not. The fact is, if they had not offered that
468
choice, these women would have been put in lower paying jobs or
would have been discharged. They offered a choice to the women.
Some of them, I guess, did not want to have children.
My opinion is not an endorsement of a sterilization policy. As I
noted, the policy mightin the opinionthe policy might be an
unfair labor practice or a form of employment discrimination
under title VII. Indeed, the union and the women employees had
sued the employer under title VII and had reached a settlement
with that employer.
The basis of the decision was Congress' intent. Since the words of
the act, "recognized hazards" were somewhat ambiguous, we
looked at legislative history and cases interpreting similar lan-
guage in other federal laws. My opinion concluded that Congress
had been concerned with physical conditions of the workplace, not
with policies offering women a choice.
And my opinion was narrow. I said that the case might be differ-
ent if the employer had offered the choice of sterilization in order
to maintain an unlawfully high lead level, but the fact is the com-
pany could not get the lead levels down and the company was
charged only because it offered women a choice.
I think that is not a pro sterilization opinion. It is not an anti-
woman opinion. It is simply upholding a federal agency to which
we owe deference in decidingwhen you review a federal agency
you are supposed to defer to their judgment if it is not outside the
bounds of rationalityand the union conceded in oral argument
that the company could lawfully have stated that only sterile
women would be employed in the department.
So this case is simply about offering women who did not want to
be discharged or sent to lower paying jobs a choice. That is all it
was about.
Senator METZENBAUM. Judge Bork, as I understand your opinion,
you are saying that the Occupational Safety and Health Adminis-
tration came in with that position. You know, I am sure, that the
Labor Secretary said that the policy should be barred. And you
cannot tell me, Judge, that any Member of Congress said or
thought that a safer workplace could be achieved at the expense of
forced sterilization.
Congress said, no hazards in the workplace, but you wrote an
opinion which said it was okay for a company to achieve safety at
the expense of women by preventing its female employees from
ever having children. I have to say to you that that is a distortion
of the statute beyond recognition. I think it is unfair. I think it is
inhumane, and maybe it somehow explains the concerns that
women of this country have and have evidenced about your ap-
pointment.
Judge BORK. Senator, may I say a word?
Senator METZENBAUM. Surely.
Judge BORK. There was not a forced sterilization policy at all.
The company merely said, if you wish to stay in a place that is
dangerous to a fetus, if you do this we will let you stay there. The
company did not achieve safety at the expense of women. They
could not get the lead levels down. The administrative agency spe-
cifically foundOSHA specifically foundthat the company had
no way of getting the levels down.
469
Now, if this opinion were not a fair one, I would not have gotten
a unanimous panel from Judges Scalia and Williams and I would
not have been able to uphold that opinion over a petition for re-
hearing en bane, to have the full court. I think there were 11 mem-
bers of our court at this time.
I do not know that there was a petition for rehearing or that
even anybody voted for rehearing. If this were the case you de-
scribed, I would not have gotten the other two judges and I certain-
ly would not have been able to sustain the opinion against our full
court of 11 members.
Senator METZENBAUM. Let me say to you, Judge Bork, during
these several days of hearings you have routinely relied upon the
fact that this judge or that judge agreed with you. You have said
that certain other legal scholars agreed with you. You have not
talked much about the great body of those who have disagreed with
you.
You say ignore your academic writings, that you they are merely
speculative. You told Senator Thurmond this morning you were
trying out arguments. That is part of the process to start a debate
as an academician. And you would say, look at your record on the
court, it is much more reliable.
You have talked about several occasions, seven out of eight cases
that you decided as the circuit court of appeals. I have asked the
Justice Department to make those available to me during the
recess. I do not have them. I do not know what they say. I do not
know whether they are distinguishable. But I cannot tell you
strongly enough that the women of this country are terribly, terri-
bly apprehensive about your appointment.
I have traveled throughout Ohio. I have traveled throughout the
country, and it is unbelievable to me the kinds of people that come
up to mea clerk, a woman who was from an economically strong
social group, you get on an elevator, you walk past somebody in a
hallwayand the women's groups, frankly, are afraid. They are
afraid of you.
Yesterday you said, women and blacks who know your record on
the court need not fear you. But the fact is, Judge Bork, they do
fear you. They are concerned. They are frightened. They were not
enthused about Sandra Day O'Connor or Rehnquist or Scalia. But
they were not frightened by that appointment.
The women of America, in my opinion, have much to be worried
about in connection with your appointment; the blacks as well.
And it is only fair to say that you have made it quite clear in your
appearance before this panel that you are not a frightening man,
but you are a man with frightening views.
Judge BORK. Well, Senator, if this case
Senator METZENBAUM. May I finish?
Judge BORK. I am sorry. I thought you were.
Senator METZENBAUM. The basic problem, as I see it, is that to
you the Constitution is not a living document; it is not a charter of
liberty. And if you cannot find protection for the individual in the
fine print, then the people of this country are out of luck.
You have stated views time again that would reverse progress for
blacks, that would slam the door on women, that would allow gov-
ernment in the bedroom, that would adversely affect the rights of
470
consumers, that would limit free speech, that would undercut the
principle of equality under the law. And before we came to these
hearings I had said publicly, and I repeat now, that I think you
had the burden of proof on your shoulders to satisfy this commit-
teeand each of us has to speak for himselfthat your views are
consistent with the Bill of Rights and previous court decisions and
the Constitution of the United States.
It is with some sadness, Judge Bork, that I say I really do not
think you have done that.
Thank you very much.
Judge BORK. Well, thank you, Senator. Let me respond briefly to
that.
In the first place, I think your discussion took off from the point
of this particular case, and I must say to you that the entire Occu-
pational Safety and Health Administration agreed with me. It was
a unanimous panel opinion and you say nobody was afraid of Jus-
tice Scalia. Justice Scalia was on this opinion. Our court did not
rehear this case en bane.
That means they did not think it was an outrageous case. And it
was a matter of statutory interpretation, not a matter of constitu-
tional law, and I suppose the 5 women who chose to stay on that
job with higher pay and chose sterilizationI suppose that they
were glad to have the choicethey apparently werethat the com-
pany gave them.
But let me go on to your broader charge. I cannot say this
enough times. You know, beginning with Brown v. Board of Educa-
tion I have supported black equality. And I have done that in print
long before I got here.
I have never said anything or decided anything that should be
frightening to women. You are undoubtedly correct, Senator, that
there are women who are apprehensive. I think it can only be be-
cause they do not know my record. I have repeatedly showed you
the cases I have decided on the court of appeals in which I have
voted for women.
In addition to that, there is no reason for consumers to fear me
because in so far as we are talking about the antitrust law, I am
guided entirely by my best understanding of what is good for con-
sumers. And if I am persuaded that something else is good for con-
sumers, I will go that way. There is no doubt about it.
If you now turn to the Constitution and my allegedly narrow
views of that, if you will look at my first amendment decisions you
will see that in cases I have taken a broad view of the first amend-
ment. If you will look at my decision that came down recently
which was assigned to me long before I was nominated and we
voted that way long before I was nominatedI have taken a broad
view of the double jeopardy clause in favor of a sentenced person.
If you will look at what I have stated about the equal protection
clause, you will see it as a better viewI think it is a better view
than one that a lot of people take who exclude groups from equal
protection.
In sum, Senator, I think there is no basis for the concern you de-
scribe among women and blacks and I regret to say, I think there
is no basis for the charges you have leveled at me.
Senator METZENBAUM. Thank you, Judge Bork.
471
The CHAIRMAN. We will check. Senator Hatch is next. Did he
yield to you? Well, Senator Simpson, are you prepared to go? Or we
can wait for Senator Hatch to come back. I would like to get one
more witness in.
Senator SIMPSON. Mr. Chairman, if you could just wait a moment
and see if Orrin is prepared.
The CHAIRMAN. In the phone booth. Okay. He will be out in just
a minute, hopefully with his cape off. [Laughter.]
Senator. You were out. I want to explain the laughter. They said
you were in the phone booth, and I said you would be here in a
minute, and hopefully with your cape off.
Senator HATCH. I heard about that crusty remark.
The CHAIRMAN. The Senator from Utah. And with your permis-
sion, we will recess at least for an hour. We will make a judgment
whether it is an hour or an hour and a half after Senator Hatch.
Senator HATCH. I would put into the record at this point, with
your approval, significant pro minority and pro women appellate
court decisions by Judge Bork if I could.
[Decisions follow:]
472
SUBSTANTIVE PRO-MINORITY AND PRO-WOMEN APPELLATE COURT

DECISIONS BY JUDGE BORK
1. Ososky v. Wick, 704 F.2d 1264 (1983)
2. Palmer v. Shultz, 815 F.2d 84 (1987)
3. Laffey v. Northwest Airlines, 740 F.2d 1071 (1984)
4. Emory v. Sec'y of the Navy, 819 F.2d 291 (1987)
5. County Council of Sumter County, South Carolina v. United

States, 555 F. Supp. 694 (1983)
6. County Council of Sumter County, South Carolina v. United
States, 596 F. Supp. 35 (1984)
7* Ethnic Employees of the Library of Congress v. Boorstin,

751 F.2d 1405 (1985)
473
1264 704 FEDERAL REPORTER, 2d SERIES
Appeal from the United States District

Margaret OSOSKY, Appellant Court for the District of Columbia (D.C.
. . v. Civil Action No. 80-02875).
Charles Z. WICK, Director of U.S. Inter- Mark T. Wilson, Washington, D.C, of the
national Communication Agency. Bar of the Court of Appeals for the District
No. 82-1043. of Columbia, pro hac vice by special leave of
the Court, with whom Ronda L. Billig,
United States Court of Appeals, Washington, D.C, was on brief, for appel-
District of Columbia Circuit. lant.
Argued Oct. 18, 1982. Diane M. Sullivan, Asst. U.S. Atty.,
Decided April 8, 1983. Washington, D.C, with whom Stanley S.
Harris, U.S. Atty., Royce C. Lamberth and
R. Craig Lawrence, Asst. U.S. Attys., Wash-
Foreign Service employee brought ac- ington, D.C, were on brief for appellee.
tion alleging violations of the Equal Pay Kenneth M. Raisler, Asst. U.S. Atty., Wash-
Act. The United States District Court for ington, D.C, also entered an appearance for
the District of Columbia, Oliver Gasch, J., appellee.
dismissed the complaint, and employee ap-
pealed. The Court of Appeals, Lumbard, Edith Barnett, Washington, D.C, was on
Circuit Judge, sitting by designation, held brief for Women's Legal Defense Fund,
that: (1) the Equal Pay Act, unlike Title amicus curiae urging reversal.
VII, provides for immediate judicial review
of claims for equal pay, and district court Before LUMBARD,* Senior Circuit
may not dismiss a complaint brought under Judge, United States Court of Appeals for
the Act for failure to exhaust administra- the Second Circuit, and EDWARDS and
tive remedies, and (2) the Equal Pay Act is BORK, Circuit Judges.
applicable to employment practices of the
Foreign Service. Opinion for the Court filed by Senior
Reversed and remanded. Circuit Judge LUMBARD.
LUMBARD, Circuit Judge:

1. Labor Relations <a=1474 Plaintiff Margaret Ososky, an employee
The Equal Pay Act, unlike Title VII, of the Foreign Service, appeals from an
provides for immediate judicial review of order of Judge Gasch, November 9, 1981,
claims for equal pay, and district court may dismissing her claim under the Equal Pay
not dismiss a complaint brought under the Act, 29 U.S.C 206(d) (1976), for failure to
Act for failure to exhaust administrative exhaust administrative remedies. Although
remedies. Fair Labor Standards Act of the dismissal was technically without preju-
1938, 1 et seq., as amended, 29 U.S.C.A. diceOsosky would be permitted to refile
201 et seq.; Civil Rights Act of 1964, after invoking the Foreign Service's own
701 et seq., as amended, 42 U.S.C.A. grievance proceduresthe district court ex-
2000e et seq. pressed "grave doubts" that the Equal Pay
2. Labor Relations <s=1333 Act applies to the Foreign Service.
The Equal Pay Act is applicable to We reverse and remand for further pro-
employment practices of the Foreign Ser- ceedings. We hold that the Foreign Service
vice. Fair Labor Standards Act of 1938, must comply with the Equal Pay Act and
6(d), (dXl), as amended, 29 U.S.C.A. that a claim under the Act may not be
206<d), (d)(l); Foreign Service Act of dismissed for failure to exhaust administra-
1980, 105(a, e), 22 U.S.C.A. 3905(a, e). tive remedies.
* Sitting by designation pursuant to 28 U.S.C. 294(d).
474
OSOSKY v. WICK 1265

Cite as 704 F.2d 1264 (1983)
I. FACTS Expressing doubt that the Equal Pay Act
Since this appeal arises from a dismissal could apply to the Foreign Service, the dis-
on the pleadings, we assume the facts to be trict court dismissed the complaint for fail-
as stated in the complaint. ure to exhaust administrative remedies.
Ososky is a Foreign Service Reserve Offi-
cer, class 5, with the International Commu- II. EXHAUSTION
nication Agency (ICA), a branch of the For- [1] We find it unnecessary to determine
eign Service. The defendant is the director the adequacy of the administrative reme-
of the Agency. dies available within the Foreign Service
In 1978, after eighteen years in the Ser- Grievance System, 22 U.S.C. 4131-1140.
vice, Ososky became the "Budget Analyst" For we hold that the Equal Pay Act, unlike
for the Exhibits Service of the ICA's Pro- Title VII of the 1964 Civil Rights Act, pro-
grams Directorate, a position she held until vides for immediate judicial review of
late in 1980. She was given sole responsi- claims for equal pay and that the district
bility for the financial planning and evalua- court could not dismiss the complaint for
tion of the exhibits aspect of the United failure to exhaust available remedies.
States' cultural programming under several The Equal Pay Act of 1963 (EPA), 29
international agreements. As a budget an- U.S.C. 206(d) (1976), was enacted as an
alyst, Ososky was paid at a rate applicable amendment to the Fair Labor Standards
to United States Civil Service positions of Act (FLSA), 29 U.S.C. 201 et seq. (1976).
the GS-12 level. During the same years, By providing that "any amounts- owing to
male budget officers in the Press and Tele- any employee which have been withheld in
vision Sections of the Programs Directorate violation of [the EPA] shall be deemed to be
were paid at the higher GS-14 rate for unpaid minimum wages or unpaid overtime
work substantially equivalent to Ososky's. compensation under [the FLSA]," 29 U.S.C.
In 1979, Ososky made several attempts to 206(dX3), Congress required that the
have her position upgraded and her pay EPA be enforced through the then long
increased. When these efforts proved un- familiar FLSA procedures for recovering
successful, she filed a complaint with the minimum wages and overtime pay. H.Rep.
EEOC. She claimed that the ICA was dis- No. 309, reprinted in U.S.Code Cong. &
criminating against her on the basis of gen- Ad.News 687, 688, 88th Cong., 1st Sess.
der by paying her less for work substantial- (1963). These procedures do not include an
ly equal to that performed by higher-paid exhaustion requirement. We believe that a
male members of the Service. She also comparison of the different remedial provi-
complained that she was barred from con- sions and similar histories of the FLSA and
sideration for the higher-paying GS-14 po- of Title VII, shows that the failure express-
sitions, because she was "being discrimina- ly to require exhaustion of claims under the
torily kept at the GS-12 level." former reflects a deliberate Congressional
Ososky's complaint was still before the decision. In 1972 when it extended the
EEOC when she filed this action in Novem- scope of Title VII to cover federal employ-
ber 1980, claiming that the ICA had violat- ees, Congress added language to the statute
ed her rights under the Equal Pay Act. expressly requiring federal employees to
The defendant moved to dismiss the com- exhaust administrative remedies before fil-
plaint on the ground that Ososky had not ing an action in federal district court.
exhausted administrative remedies availa- Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct.
ble under the Foreign Service Act, 22 1961, 1967, 48 L.Ed.2d 402 (1976). See
U.S.C. 4131^140 (Supp.1981) and Title Equal Employment Opportunity .Act,
VII of the Civil Rights Act of 1964, 42 Pub.L. 92-261, 11 (March 24, 1972), codi-
U.S.C. 2000e-16(c), and on the additional fied at 42 U.S.C. 2000e-16(c). Against
ground that, in any event, the Equal Pay this background, the 1974 amendments ex-
Act does not apply to the Foreign Service. tending the FSLA's minimum wage guar-
475
antees and discriminatory pay protections to run an administrative gauntlet as a pre-

to federal employees stand in marked con- condition to filing suit, Congress would
trast. For, although 6(b) of the 1974 have provided, as it did when it amended
FLgA amendments, codified at 29 U.S.C. Title VII, that back pay could be received
204(f), authorized the Civil Service Com- for the period beginning two years before
mission (now the Office of Personnel Man- either filing an action in federal court or
agement) to administer the FLSA, Congress commencing administrative proceedings.
specifically provided that "nothing in this
subsection shall be construed to affect the Finally, we do not believe that, in the
right of an employee to bring an action for ordinary EPA case, the court should stay
unpaid minimum wages, or unpaid overtime the proceedings pending administrative
compensation, and liquidated damages un- hearings. Defendant apparently suggests
der 216(b) of this title." Id. And that EPA plaintiffs should file a complaint
216(b), as amended in 1974, provides sim- in federal court to preserve their back pay
ply that an action to recover liability under awards, then proceed to have the action
the EPA may be maintained "against any stayed pending exhaustion of administra-
employer (including a public agency) in any tive remedies. Then, after those remedies
Federal or State Court of competent juris- have been exhausted, the plaintiff could
diction." 29 U.S.C. 216(b) (1976). Sec- return to federal court and pursue her judi-
tion 216(b) makes no reference to the avail- cial remedies. We see no warrant for such
ability of administrative remedies. a scheme. The courts have been charged
with making the initial factual determina-
These provisions make it clear that "the
tions relevant to the Equal Pay Act. This
Equal Pay Act, unlike Title VII, has no
requirement for filing administrative com- case does require the resolution of the sort
plaints and awaiting administrative concil- of complex and technical factual issues
iation efforts." County of Washington v. which might be better resolved by an ad-
Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 ministrative agency with special compe-
L.Ed.2d 751 (1981). See also Nitterright v. tence in the area. Cf. Ogden v. Zuckert,
Claytor, 454 F.Supp. 130, 24 Fair Emp.Prac. 298 F.2d 312 (D.C.Cir.1961) (Air Force ma-
Cases 678, 684 (D.D.C.1978); Cox v. Univer- jor sought declaratory judgment establish-
sity of the District of Columbia, 24 Fair ing right to be retired rather than dis-
Emp.Prac. Cases 690 (D.D.C.1981). Had charged because of physical disability);
Congress intended to require exhaustion Sohm v. Fowler, 365 F.2d 915 (D.C.Cir.1966)
when it enacted the 1974 FLSA amend- (Lieutenant Commander, United States
ments, it would have done so expressly as it Coast Guard, sought to avoid retirement for
did when it made similar amendments to having been passed over; the court sought
Title VII. Nothing in the legislative histo- to avoid difficult constitutional issues by
ry suggests that the omission was an over- staying the case pending the completion of
sight. ongoing proceedings before the Board for
Correction of Military Records to resolve
Moreover, permitting the district court to
complex and technical factual issues.)
require exhaustion in its discretion would
Douglas v. Hampton, 512 F.2d 976, 1014-15
be inconsistent with the statute's remedial
(D.C.Cir.1975) (question of validity of en-
scheme. The FLSA provides compensatory
relief for victims of wage discrimination. trance examination remanded to Civil Ser-
That relief is not unlimited; back pay may vice Commission.) Here, we perceive no
be awarded only for the period beginning reason why judicial factfinding might be
two years before filing suit. 29 U.S.C. improved if the plaintiff first had recourse
255(a). Thus, the right to back pay is to administrative grievance procedures. In-
continually eroded as the EPA claimant deed, defendant's sole argument on the
pursues administrative remedies. Had Con- merits seems to be that the Equal Pay Act
gress intended to permit courts to require is incompatible with and therefore inappli-
EPA plaintiffs, like the Title VII plaintiffs, cable to the way things have long been done
476
OSOSKY v. WICK 1267

Cite as 704 F.2d 1264 (1983)
in the Foreign Service. We do not think positions bearing the same rank. That
that the Foreign Service's general griev- they receive commensurate salaries is am-
ance committee has any special competence ply explained by the differences in quali-
to decide such a question. Similarly, we do fications and responsibilities of employees
not believe that a general grievance com- in the two different divisions.
mittee has any special competence to deter- The government argues that since the
mine equality of work. And, in any event, Foreign Service pays on the basis of person-
the committee's analysis would not add ap- al grade rather than position or work, and
preciably to the Service's already completed since its shifting international staffing
audits of plaintiff's position. needs often require persons of different
grades to hold similar jobs, therefore it
III. APPLICABILITY OF THE EQUAL PAY ACT cannot be held to a standard requiring
TO THE FOREIGN SERVICE equal pay for equal work. To apply the
[2] The district court apparently accept- EPA, the argument goes, would undermine
ed the defendant's argument that the EPA the Service's ability to maintain the salary
is incompatible with and therefore inappli- of highly qualified, long-time employees
cable to the Foreign Service's merit system. when momentary needs require their pres-
We note our view that the defendant's ar- ence in a geographic area where there are
gument is refuted by the language of the no suitably high ranking positions.
EPA and the FLSA and is unsupported by First, the distinction between rank in per-
precedent or policy. son and rank in position system is over-
The thrust of the defendant's position is drawn. We do not doubt that the Service
that the "equal pay for equal work" princi- needs the flexibility to transfer its highly
ple is fundamentally at odds with the Ser- qualified personnel around the globe with-
vice's "rank in person" personnel system. out adjusting salary to fit the exact nature
This court recently described this congres- of the positions employees temporarily hold.
sionally established system in Talev v. Rein- Nonetheless, the Service continues to view
hardt, 662 F.2d 888, 895 (D.C.Cir.1981): positions as having a particular gradeas
This so-called 'rank in person' system being suitable, other things being equal, to
which statutorily governs the appoint- persons having the same grade. In other
ment and assignment of all Foreign Ser- words, the Service makes some attempt to
vice employees . . permits the agency tie pay to work. Thus, a successful EPA
to assign and transfer employees from challenge might be based on the claim that
post to post as its organizational interests the Foreign Service assigned different
may require. The rank in person system grades to identical jobs and staffed the
differs from the rank in position system lower ranked positions with women and
of the civil service, under which the em- that the resulting gender-based discrimina-
ployee and his position are assigned the tion in pay was not explained by temporary
same grade. Under the rank in person staffing needs and the greater seniority or
system, grades are assigned to positions qualifications of the inale employees.
and employees separately, with the grade Second, even though the Service does not
of the position assessed at its maximum use work as the sole criteria for setting
performance level, and the grade of the salaries, the rank in person systems is still
employee established on the basis of his not incompatible with the Equal Pay Act.
or her personal qualifications. The result As we noted in Talev, supra, the Service
is that Foreign Service employees fre- bases salary on an employee's qualifications,
quently occupy positions having higher responsibility and length of time in .the
grades than their personal grades. Simi- Service. Although the Equal Pay Act re-
larly, it often happens that two employ- quires that equal pay be given for work
ees having substantially different qualifi- equal in "skill, effort, and responsibility,"
cations or experience may be assigned to 29 U.S.C. 206(d), the Act also provides
477
express exceptions for length of time with that the Foreign Service be made an excep-
the employer ("seniority") and qualification. The EPA applies to all federal em-
tions ("merit"). 29 U.S.C. 206(d).1 Since ployees "in any executive agency (as
the Equal Pay Act thus incorporates the defined in 105 [of Title 5])" 29 U.S.C.
compensation criteria underlying the Ser- 203(e)(2)(A)(ii) (1976). Section 105 of Ti-
vice's rank in person system, the proper tle 5 defines an "Executive agency" as in-
place for the government's arguments justi- cluding an executive department. The De-
fying the pay disparity is in the interpreta- partment of State, which includes the For-
tion of 206(d) defenses. eign Service, is an "Executive department."
The defendant argues that Congress 5 U.S.C. 101 (1976). Since, the members
could not have intended that each time the of the Service fall within the EPA's affirm-
Foreign Service transfers a female employ- ative definition of covered employees, the
ee, it make sure that she is being paid Service can be excluded from coverage only
commensurably with equally qualified and if it falls within an exceptions clause.
equally senior male employees doing equiv- However, in a very specific list of excepted
alent work. We disagree. That is exactly groups, the Service is not mentioned. 29
what Congress intended. All employers are U.S.C. 203(eX2)(C), (3).2
to make sure that the wages they pay to
female employees are not lower because The Foreign Service Act of 1980 itself
they are wages paid to female employees. provides the clearest indication that Con-
Nor do we believe that this task is especial- gress believed that the EPA applied to the
ly burdensome. Any employer does all that Foreign Service. Section 3905(e) of Title 22
the Act requires in the course of complying provides that nothing in the set of princi-
with reasonable procedures for establishing ples and rules governing the Service's merit
wages based on work, skill, effort, responsi- ranking, employee protections, and minority
bility, qualification, seniority and the like, recruitment
without regard to gender. . . . shall be construed to extinguish or
On its face, the EPA applies to the For- lessen . . . any right or remedy available
eign Service, and because we find nothing to any employee or applicant for employ-
in the EPA inconsistent with the personnel ment in the civil service under . . [the
system established by the Foreign Service Equal Pay Act], prohibiting discrimina-
Act, we reject the defendant's suggestion tion on the basis of sex."3
1. The Equal Pay Act provides in pertinent part: [ (2)(C) j(i) who is not subject to the civil
No employer hiring employees subject to any service laws of the state, political subdivi-
provisions of this section shall discriminate, sion, or agency which employs him, and
within any establishment in which such em- (n) who
ployees are employed, between employees on (I) holds a public elective office of that
the basis of sex by paying wages to employ- state, political subdivision, or agency,
ees in such establishments at a rate less than (II) is selected by the holder of such an
the rate at which he pays wages to employ- office to be a member of his personal staff,
ees of the opposite sex in such establishment (III) is appointed by such an officeholder
for' equal work on jobs the performance of to serve on a policy making level, or
which requires equal skill, effort, and respon- (IV) who is an immediate advisor to such
sibility, and which are performed under simi- an officeholder with respect to the constitu-
lar working conditions, except where such tional or legal powers of his office.
payment is made pursuant to (l) a seniority (3) For purposes of subsection (u) of this
system; (ii) a merit system; (iii) a system section, ["employee"] does not include any
which measures earnings by quantity or individual employed by an employer engaged
quality of production; or (IV) a differential in agriculture if such individual is the parent,
based on any other factor other than sex spouse, child, or other member of the em-
29 U.S.C. 206(d)(l). ployer's immediately family.
2. Section 203(e) defines "employee" and lists 3. Defendant argues that the "civil service" re-
the following exceptions: any individual em- ferred to in 3905(a) does not include the
ployed by the state Foreign Service, and that 3905(e) therefore
provides only that nothing in the Foreign Ser-
478
CROWLEY v. SHULTZ 1269

Cite as 704 F.2d 1269 (1983)
This section gives to members of the Ser-
vice the same rights available to federal James D. CROWLEY, et al.
employees generally and reflects Congress'
judgment that there was no need to create George P. SHULTZ, Secretary of State,
a distinct body of discrimination law for the et al., Appellants.
Foreign Service. Rather, the Act was to
direct the "vigorous implementation" of
legislation Congress regarded as "currently James D. CROWLEY, et al.
applicable to the Foreign Service, such as v.
. . . section 6(d) of the Fair Labor Standard George P. SHULTZ, et al., Appellants.
Act [the Equal Pay Act] . ." Sen.Rep.
No. 96-913, 96th Cong., 2d Sess., 14 (1980),
U.S.Code & Ad.News, 4432. James D. CROWLEY, et al., Appellants
v.
The judgment of the district court is re-
George P. SHULTZ, Secretary of
versed and the case is remanded for further
State, et al.
proceedings not inconsistent with this opin-
ion. Nos. 81-2213, 81-2352 and 82-1007.
United States Court of Appeals,

District of Columbia Circuit.
Argued Sept. 17, 1982.

Decided April 12, 1983.
Suit was brought challenging State De-

partment's "overcomplement" system of
personnel practices. The United States
District Court for the District of Columbia,
Aubrey E. Robinson, Jr., J., 496 F.Supp.
360, approved special master's finding that
attorney fees should be awarded. The Dis-
trict Court subsequently fixed a fee, and
appeal was taken The Court of Appeals,
Bork, Circuit Judge, held that: (1) the court
did not lack jurisdiction on theory that prior
order finding that fee should be available
vice Act diminishes the rights of persons in the Moreover, the legislative history shows that
Civil Service who are not members of the For- the section was designed to carry its less
eign Service strained reading Rather than even hinting at
We believe this reading renders 3905(e) the interpretation suggested by the defendant,
superfluous. Congress would not add a provi- the Senate report on the Foreign Service Act of
sion to the Foreign Service Act to the effect 1980 states simply that this section establishes
that the merit system governing members of that the Foreign Service Merit System "does
the Service does not diminish the rights of not affect any right or remedy available to
persons who are not members of the Service any employee or applicant under existing Fed-
In the absence of such language, no court eral Law prohibiting discrimination " Senate
would assume that procedures appropriate to Report 96-913, 96th Cong , 2d Sess (1980) U.S.
the Foreign Service's unique system would be Code Cong & Ad News, 4419, 4447.
applicable to members of, say, the Postal Ser-
vice
479
1. Civil Rights =9.10

Alison PALMER, et al., Appellants Disparate treatment claims under Title
VII can involve isolated incident of discrim-
ination against single individual or allega-
- George P. SHULTZ, as
tions of "pattern or practice" discrimina-
Secretary of State.
tion affecting entire class of individuals.
Marguerite COOPER, et al., Appellants Civil Rights Act of 1964, 701 et seq., as
amended, 42 U.S.C.A. 2000e et seq.
George P. SHULTZ, as 2. Civil Rights =44<1)

Secretary of State. Title VII plaintiffs in pattern or prac-
Nos. 85-6101, 85-6102. tice case make prima facie showing of dis-
crimination with direct, circumstantial or
United States Court of Appeals, purely statistical evidence. Civil Rights
District of Columbia- Circuit.
Act of 1964, 701 et seq., as amended, 42
Argued Sept 25, 1986. U.S.C.A. 2000e et seq.
Decided March 24, 1987. 3. Civil Rights =43
As Amended March 24, 1987. Burden shifts to defendant to intro-
duce evidence of legitimate nondiscrimina-
tory explanation for disparity between men
Female foreign service officers
and women in selection rates for particular
brought suit against Department of State
job, where Title VII plaintiffs succeed in
alleging sex discrimination. The United
showing statistically significant disparity
States District Court, District of Columbia,
using properly defined pool of eligible can-
John Lewis Smith, Jr.; J., 616 F.Supp. 1540,
entered judgment for defendant, and plain- didates. Civil Rights Act of 1964, 701 et
tiffs appealed. The Court of Appeals, seq., as amended, 42 U.S.C.A. 2000e et
Wald, Chief Judge, held that (1) State seq.
Department could not discriminate against
female officers in evaluating officers for 4. Civil Rights *=43
promotion, regardless of any demonstrated Courts will infer that disparity be-
effect that evaluations ultimately had on tween men and women in selection rates
officers' promotion opportunities; (2) dis- for particular job results from unlawful
trict court's finding, that State Department discrimination, based on statistical evidence
did not unlawfully discriminate against fe- alone, where disparity measures at least
male foreign service officers with respect 1.96 standard deviations on two-tailed bell-
to "stretch" and "downstretch" assign- shaped curve. Civil Rights Act of 1964,
ments, was clearly erroneous; (3) inclusion 701 et seq., as amended, 42 U.S.C.A.
of pre-Act data regarding frequency with 2000e et seq.
which female officers received appoint-
ments to particular position did not under- 5. Civil Rights =>44(5)
cut probative value of study in connection Title VII plaintiffs succeed in estab-
with officers' Civil Rights Act claim; and lishing prima facie case of unlawful dis-
(4) female officers succeeded in demon-
crimination where totality of evidence, in-
strating unlawful discrimination in grant-
cluding statistical data, demonstrates that
ing of award, based on statistical discrep-
employer's disparate treatment of male and
ancy between number of male and female
female employees, more likely than not,
officers that received award that measured
resulted from unlawful discriminatory ani-
3.1 standard deviations on two-tailed bell-
mus. Civil Rights Act of 1964, 701 et
shaped curve.
seq., as amended, 42 U.S.C.A. 2000e et
Reversed and remanded. seq.
480
PALMER v. SHULTZ 85
Clteas815FJtdJS4 (D.C.CIr. 1987)
6. Civil Rights =42 at such a disproportionately higher rate
Title VII plaintiffs need not prove dis- that statistical evidence alone warranted
crimination in personnel actions other than inference of unlawful discrimination, fe-
those specifically at issue. Civil Rights Act male employees' Title VII case would be
of 1964, 717, as amended, 42 U.S.C.A. remanded to district court for determina-
2000e-16. tion of whether such inference was justi-
fied, where disparity measured 1.76 stan-
7. Civil Rights =9.14
dard deviations on two-tailed bell-shaped
Employer may not defend against Title curve, and female employees presented tes-
VII plaintiffs' claim that it unlawfully dis- timony and documented evidence of gener-
criminated against them in certain kinds of al bias against women in State Depart-
employment decisions by showing that it ment. Civil Rights Act of 1964, 717, as
did not discriminate against women in oth- amended, 42 U.S.C.A. 2000e-16.
er kinds of employment decisions, even
though such evidence might be probative of 12. Civil Rights =9.14
whether any intentional discrimination ac- Under Title VII, the State Department
tually occurred. Civil Rights Act of 1964, could not discriminate against female em-
717, as amended, 42 U.S.C.A. 2000e-16. ployees in evaluating them for promotion,
8. Civil Rights =43 regardless of any demonstrated effect that
When plaintiffs in Title VII case intro- evaluations ultimately had on female em-
duce statistical evidence of extreme dispari- ployees' opportunities for promotion. Civil
ty in selection rates of men and women for Rights Act of 1964, 717, as amended, 42
certain job, fact that plaintiffs had insuffi- U.S.C.A. 2000e-16.
cient evidence to establish inference of dis- 13. Civil Rights =43
crimination regarding other employment Statistical survey, showing that female
decisions should not block inference of dis- foreign service employees were given pro-
crimination on specific type of employment portionately fewer out-of-cone assignments
decision at issue. Civil Rights Act of 1964, to program direction cone and proportion-
717, as amended, 42 U.S.C.A. 2000e-16. ately more out-of-cone assignments to con-
9. Civil Rights =43 sular cone, was admissible in Title VII case
Imperfections in data on which Title as probative of alleged unlawful discrimi-
VII plaintiffs' statistical analysis depends, nation within service; fact that survey did
or omission of possible explanatory factors not consider employee preferences as possi-
from plaintiffs' statistical study, is not nec- ble explanatory factor did not destroy its
probative value, where government sub-
essarily fatal to inference of unlawful dis-
mitted no evidence showing that more
crimination. Civil Rights Act of 1964,
women than men preferred out-of-cone as-
717, as amended, 42 U.S.C.A. 2000e-16.
signments to consular cone.
10. Civil Rights =44(1)
As general rule, Title VII defendant 14. Civil Rights =9.14
cannot rebut statistically significant evi- Female members of foreign service
dence of unlawful discrimination by mere were entitled to bring claim of sex discrimi-
conjectures or assertions, but must intro- nation with respect to any discriminatory
duce evidence to support contention that personnel actions, including any category
missing factor can explain disparities in of assignments, regardless of how these
Wring practices as product of legitimate, assignments affected their opportunities
nondiscriminatory selection criteria. Civil for promotion. Civil Rights Act of 1964,
Rights Act of 1964, 717, as amended, 42 717, as amended, 42 U.S.C.A. 2000e-16.
U.S.C.A. 2000e-16.
15. Evidence =75
U. Federal Courts <&944 Title VII plaintiffs in pattern or prac-
Even though eligible male employees tice case could not legitimately be faulted
within foreign service were not promoted for gaps in statistical analysis, where infor-
481
mation necessary to close those gaps was of treatment and discriminatory intent,
in possession of employer. Civil Rights even if proof of intent is circumstantial and
Act of 1964, 701 et seq., as amended, 42 disparity itself raises inference of intent.
U.S.C.A. 2000e et seq. Civil Rights Act of 1964, 717, as amend-
16. Civil Rights =9.14 ed, 42 U.S.C.A. 2000e-16.
Foreign service unlawfully discrimi- 20. Federal Courts =944
nated against its female employees with Disparate impact claim brought by fe-
respect to "stretch" and "downstretch" as- male members of foreign service could be
signments, though testimony was present- remanded to district court for determina-
ed of isolated instances in which female tion of whether disparate placement of
employees actually preferred "down- those taking written exams was, more like-
stretch" assignments, where some of the ly than not, caused by disparity in test
disparities between men and women with
scores for male and female exam takers or
respect to such assignments measured
by different assignment preferences be-
more than four standard deviations on two-
tween male and female exam takers. Civil
tailed bell-shaped curve, and government
did not otherwise explain discrepancies. Rights Act of 1964, 717, as amended, 42
Civil Rights Act of 1964, 717, as amend- U.S.C.A. 2000e-16.
ed, 42 U.S.C.A. 2000e-16.
17. Civil Rights =44(5) Appeals from the United States District
Inclusion of pre-Act data regarding Court for the District of Columbia, (Civil
frequency with which female members of Action Nos. 77-02006 and 77-01439).
foreign service received appointments to
particular position did not undercut proba- Bruce J. Terris, with whom Ellen Kabce-
tive value of study, in connection with fe- nell Wayne, Washington, D.C., was on brief
male employees' claim of sexual discrimina- for appellants.
tion under the Civil Rights Act, even Stuart Henry Newberger, Asst. U.S.
though any discrimination occurring prior Atty., with whom Joseph E. diGenova, U.S.
to effective date of Act was not directly Atty., Royce C. Lamberth, R. Craig Law-
actionable. Civil Rights Act of 1964, rence and Diane M. Sullivan, Asst. U.S.
717, as amended, 42 U.S.C.A. 2000e-16. Attys., Washington, D.C., were on brief for
appellee.
18. Civil Rights =>44(5)
Title VII plaintiffs succeeded in show- Bettina M. Lawton, Washington, D.C.,
ing that foreign service discriminated was on brief, for amicus curiae, Women's
against them in granting particular award, Bar Association of the District of Colum-
even assuming that foreign service did not bia, urging reversal.
discriminate against women in connection
with any other honor awards, where statis- Before WALD, Chief Judge, BORK,
tical discrepancy between number of men Circuit Judge, and HAROLD GREENE,*
and women who received award measured District Judge.
3.1 standard deviations on two-tailed bell-
shaped curve, and government did not of- Opinion for the Court filed by Chief
fer any explanation for disparity. Civil Judge WALD.
Rights Act of 1964, 717, as amended, 42 WALD, Chief Judge:
U.S.C.A. 2000e-16.
In this action, a class of women plaintiffs
19. Civil Rights *=42 allege various forms of unlawful employ-
Title VII plaintiff who brings disparate ment discrimination in the Foreign Service
treatment claim must prove both disparity from 1976 to 1983. After a trial, the Dis-
Of the United States District Court for the Dis- ant to 28 U.S.C. 292(a).
trict of Columbia, sitting by designation pursu-
482
PALMER v . SHULTZ 87
Cite as 815 FJd 84 (D.C.Clr. 1987)
trict Court found that no unlawful discrimi- "career candidates," the parties to this law-
nation had occurred. See 616 F.Supp. 1540 suit use the term "Foreign Service Offi-
(D.D.C.1985). This appeal followed. The cer," or "FSO," to refer to those serving
record, however, discloses that the District under both career and limited appoint-
Court's decision was premised on errors of ments. To avoid confusion, we will do like-
law and that several of its critical findings wise.)
of fact were clearly erroneous. Conse- The Foreign Service assigns its officers
quently, we reverse, and remand for fur- to one of four areas of functional special-
ther proceedings in accordance with this ization, known as "cones": political, eco-
opinion. nomic, administrative, and consular. Offi-
cers in the political and economic cones
I. BACKGROUND INFORMATION
deal with, respectively, political and eco-
A. The Foreign Service and Its Employ- nomic dimensions to foreign relations and
ment Practices foreign policy. Officers in the administra-
The Foreign Service is our nation's pro- tive cone "are responsible for the support
fessional diplomatic corps. Members of operations of U.S. embassies and consu-
the Service represent the interests of this lates." 616 F.Supp. at 1544 (II 5). Officers
nation abroad and assist the Secretary of in the consular cone "work closely with the
State in the formulation of foreign policy at public providing assistance to American
home. See 22 U.S.C. 39O4(1H2). The travelers and residents abroad, issuing vi-
organization of Foreign Service personnel sas [and dealing with] other immigration
draws on the model of the United States related issues." Id. (H 6). As the District
military as well as the United States civil Court expressly found, the State Depart-
service. See S.Rep. No. 913, 96th Cong., 2d ment does not encourage FSOs to change
Sess. 2 (1980), U.S.Code Cong. & Admin. cones, and "[o]fficers are expected to serve
News 1980, P. 4419. For example, the the major portion of their time in the Ser-
Foreign Service is a "rank-in-person" sys- vice" in the cones to which they were ini-
tem: members of the Service have an indi- tially assigned. Id. (MI 10,14). Some offi-
vidualized rank which is independent of the cers, however, do switch cones. Senior
rank of the particular job they happen to FSOs who have demonstrated leadership
hold at any given time. H.R.Rep. No. 992, ability may transfer into a "prestigious"
pt. 1, 96th Cong., 2d Sess. 3 (1980). program direction cone. Id. at 1554 (11104).
The Foreign Service also copies the mili- Other FSOs are occasionally given tempo-
tary in its "up or out" personnel system. rary assignments to other cones or to some
Individuals must serve a probationary peri- "inter-functional" positions. Id. at 1550
od of up to five years before they can (H 70). ' .
receive a career appointment in the Service. Most FSOs applying to the Foreign Ser-
22 U.S.C. 3946. If at the end of that vice at junior entry levels -must take a
period an individual has not received a ca- written examination. Beginning in 1975,
reer appointment, he or she must leave the the examinations have tested applicants for
Service. Id. 3949. (Although according aptitude in all four functional areas, and
to the Foreign Service Act of 1980, the the Foreign Service has used the results of
term "Foreign Service Officer" refers only these examinations to determine a new
to members of the Service with career ap- FSO's initial cone assignment Id. at 1545
pointments, and those serving under a lim- (II15.)' A relatively small number of indi-
ted, probationary appointment are called viduals have entered the Service laterally
1- Before 1975, the Foreign Service tested each the results of the functional field cone 'tests
applicant in only one of the four functional were used to make initial cone assignments.
"reas, and required the applicant to select the Since 1980, admission has depended upon over-
cone in which he or she wished to be tested. all performance on the functional field tests, but
Defendant's Post-Trial Brief at 40. From 1975 applicants must achieve a certain cut-off score
to
1979, applicants were admitted into the Ser- on the particular cone test in order to be eligible
** on the basis of general test scores alone; for appointment to that cone. Id at 43.
483
as mid-level FSOs. These lateral entrants ments simply because they bid for them.
bypassed the examination process and "se- Id. at 1551 (H 77)!
lected, in advance, the functional field in The Foreign Service prepares annual
which they wished to compete and were written evaluations of its officers' job per-
evaluated only for that specific cone." Id. formance. In addition to rating the actual
(1117).' past performances of FSO's, the evalua-
Once in the Foreign Service, individuals tions rate the potential of the FSOs future
change specific jobs frequently; the State job performance. 616 F.Supp. at 1549.
Department has a policy of assigning indi- The State Department also gives out Honor
viduals to positions for a set period of time, Awards in recognition of outstanding
generally two to three years. See id. at achievement. In descending order of pres-
1560 (tl 71); H.Rep. No. 96-992, pt. 1, 96th tige are the Distinguished Honor Award,
the Superior Honor Award, and the Merito-
Cong., 1st Sess. 3 (1980). Since 1975, job
rious Honor Award. See Plaintiffs' Post-
assignments in the Foreign Service have
Trial Brief at 112-13.
been made pursuant to' an Open Assign-
ment Policy, in which all members of the Except for Senior members, salaries in
Service receive a list of vacant positions the Foreign Service are based on a sched-
and submit "a bid list" indicating their ule established by the President which con-
preferences. These bid lists are compiled sists of nine salary classes. 22 U.S.C.
into a "bid book" from which assignment 3963. The Secretary of State assigns all
panels make their selections, after consid- Foreign Service Officers to a particular
ering the interests and preferences of the salary class. Id. 3964. By statute, ex-
bureau in which each position is located. cept in limited circumstances, a career can-
Id. at 1550 (1FU 73, 74). As previously indi- didate for appointment as a Foreign Ser-
cated, some FSOs receive "out-of-cone" as- vice Officer may not be initially assigned to
signments pursuant to this process but in a salary class higher than class 4 (class 1
the main, job transfers are made inside the being the highest). Id. 3947. Usually
cones of initial assignment. In addition, career candidates are placed initially in
FSOs do not necessarily receive a job posi- class 7 or class 8. Promotions from one
salary class to another are made by the
tion with a rank corresponding to the indi-
Secretary of State after receiving recom-
vidual's personal rank. Positions that have
mendations and rankings submitted by se-
a higher rank than the individual are lection boards which evaluate the members
known as "stretch" assignments. Posi- of each class. Foreign Service Officers do
tions with a lower rank than the individu- not compete for promotions until the transi-
al's are "down-stretch" assignments. Pur- tion from class 6 to class 5; until then, they
suant to the Open Assignment Policy, indi- are promoted at the end of an established
viduals do not receive stretch or down- time period if they perform their duties
stretch assignments unless they bid for satisfactorily. See Joint Appendix ("J.A.")
them, but as with any other assignment, at 117-121; Defendant's Post-Trial Brief at
individuals do not receive these assign- 96.s
2. Another relatively small group have entered 3. The decision to grant a career candidate ten-
the junior ranks of the Foreign Service without ure as a Foreign Service Officer is made inde-
going through the examination process. Below pendently of the promotion process. Tenure
1984, minority applicants who entered the For- decisions are made by the Secretary of State
eign Service through the Affirmative Action Jun- pursuant to 22 U.S.C. 3946, which provides
ior Officer Program were not required to take that the Secretary's decisions shall be based on
the entrance examinations. Similarly, the Mus- the recommendations of special tenure boards.
tang Program, which allows State Department See Defendant's Post-Trial Brief at 100-02; see
employees not in the Foreign Service to become also Daniels v. Wick. 812 F.2d 729 (D.C.Cir.1987)
members of the Service, has not used the exami- (holding that 3946 provides the only means
nation. Individuals who have entered the Ser- for receiving tenure under the Foreign Service
vice pursuant to these programs have received
initial cone assignments based on their back- Act of 1980).
ground and experience.
484
PALMER v. SHULTZ g9
Cite as 815 F.M 84 (D.CClr. 1987)
B. The History of This Litigation more "downstretch" assignments than men
This class action began over ten years in the same class. Fourth, women received
ago when appellants filed their complaint a disproportionately low number of ap-
alleging that widespread discrimination pointments as Deputy Chief of Mission, the
against women in the Foreign Service vio- position just below that of Ambassador.
lated Title VII of the Civil Rights Act of Fifth, in its evaluation reports, the State
1964, as amended in 1972 to cover employ- Department gave lower future potential
ment discrimination in the federal govern- ratings to women than men despite equiva-
ment. See 42 U.S.C. 2000e-16. The par- lent ratings for their past performance.
ties subsequently resolved by consent de- Sixth, women received a disproportionately
cree all claims relating to admission into low number of Foreign Service Honor
the Foreign Service.4 The appellants' Awards. And seventh, the State Depart-
claims of discriminatory personnel actions ment promoted women from class 5 to
against women already in the Foreign Ser- class 4 at a lower rate than it promoted
vice proceeded to trial in the District Court. men.
The parties agreed to try initially only the
With respect to each of these seven per-
issue of liability, leaving appropriate reme-
dies to a subsequent phase of the proceed- sonnel practices, the appellants offered
ings, if necessary. After trial on the liabili- data showing a disparity between men and
ty issue, the District Court concluded that women, along with a statistical analysis
appellants "failed to show by a preponder- designed to demonstrate the improbability
ance of the evidence any sexual discrimina- that a disparity of that scale could result
tion by the State Department." 616 F. from chance. The data and analysis, they
Supp. at 1561. The court entered a final allege, provide a strong basis for inferring
judgment for the Secretary of State, dis- that this disparity was the product of un-
missing the complaint. Id. lawful discrimination. In addition, the ap-
pellants introduced nonstatistical evidence
This appeal followed from the District pertaining generally to the existence of a
Court's failure to find sex discrimination in prejudicial attitude towards women in the
seven different types of personnel practic- Foreign Service from 1976 to 1983. The
es.6 First, the appellants claim that from District Court, however, rejected the infer-
1976 to 1983, the Foreign Service discrimi- ence of unlawful discrimination in each of
nated against women in the initial cone the seven areas.
assignments of entering FSOs; the State
Department assigned proportionally fewer In discounting the probative force of ap-
women than men to the political cone and pellants' statistics, the District Court said
proportionately more women than men to that their statistical studies rested on
the consular cone. This disparity was al- faulty data, or flawed methodology, or
legedly caused by the differing scores of omitted a crucial variable that would ex-
women and men on the Foreign Service plain the disparity between men and wom-
entrance examinations, producing a dispar- en in a nondiscriminatory way. The Dis-
ate impact on women and men candidates trict Court also said that some of the statis-
in violation of Title VII. Second, women tical evidence focused on too narrow a seg-
were given proportionally fewer out-of- ment of Foreign Service personnel practic-
cone assignments to the program direction es. As we shall explain, the District
cone and proportionally more out-of-cone Court's treatment of the appellants' evi-
assignments to the consular cone. Third, dence was in some instances contrary to
women were given proportionally fewer law and in other respects clearly erroneous
"stretch" assignments and proportionally as a matter of fact.
4. The Junior Applicant Consent Decree settled 5. The appellants have not appealed all issues
all claims involving entry-level, decisions into raised at trial.
the junior ranks of the Foreign Service. The
Mid-Level Applicant Consent Decree settled all
issues of lateral entry into the Foreign Service.
485
II. TITLE VII CLAIMS.- TWO advantaged sex, usually women. To pre-
DIFFERENT THEORIES vail in their claim, plaintiffs must prove, by
[1] Under Title VII a plaintiff can rely a preponderance of the evidence, that these
on either of two different theories to sup- allegations are true. Proof of the disparity
port a claim of unlawful sex discrimination. itself is based upon a comparison of the
A "disparate treatment" claim alleges that proportion of those women eligible for se-
the defendant intentionally based an em- lection who were actually selected with the
ployment decision on the sex of the plain- corresponding proportion of eligible men
tiffs. See, e.g., International Brother- who were actually selected. Plaintiffs es-
hood of Teamsters v. United States, 431 tablish a disparity disfavoring women if the
U.S. 324, 335 & n. 15, 97 S.Ct. 1843, 1854 & evidence demonstrates that the selection
n. 15, 52 L.Ed.2d 396 (1977). Disparate rate for eligible women was less than the
treatment claims can involve an isolated selection rate for eligible men. Sometimes,
incident of discrimination against a single the disparity is expressed as the difference
individual, or, as in this case, allegations of between the number of women actually
a "pattern or practice" of discrimination selected and the number of women one
affecting an entire class of individuals. Id. would expect to have been selected, assum-
A "disparate impact" claim alleges that the ing equality in the selection rates for men
defendant based an employment decision and women. (If one knows the number of
on a criterion that although "facially neu- women eligible and the selection rate for
tral" nevertheless impermissibly disadvan- men, one can determine, using algebra, the
taged individuals of one sex more than the expected number of successful women.)
other. Id. at 336 n. 15, 97 S.Ct. at 1854 n.
[2] Proof that the observed disparity
15. This case is a "classic" example of a
disparate impact claim in which plaintiffs was caused by an unlawful bias against
allege that the defendant based employ- women need not be direct. Circumstantial
ment decisions on the results of a test for evidence that the disparity, more likely
which members of one sex on average re- than not, was a product of unlawful dis-
ceived lower scores than members of the crimination will suffice to prove a pattern
other sex. See B. Schlei & P. Grossman, or practice disparate treatment case. See
Employment Discrimination Law at 13 Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct.
(1983-84 Supp.); see also Griggs v. Duke at 1854 n. 15. Indeed, this circumstantial
Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 evidence may itself be entirely statistical in
L.Ed.2d 158 (1971) (the original disparate nature. See, e.g., Segar v. Smith, 738 F.2d
impact case). 1249, 1278-79 (D.C.Cir.1984), cert, denied
sub. nom. Meese v. Segar, 471 U.S. 1115,
Because these two theories are distinct, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). In
we must consider them separately. Appel- this case, appellants rely to a great extent
lants' only disparate impact claim concerns on statistical evidence to prove their claims
the initial cone assignments; the other six of disparate treatment. We find it neces-
claims involve disparate treatment and we sary, therefore, to discuss how statistical
will consider them first. analysis of an observed disparity can raise
an inference of unlawful discrimination.
III. LEGAL PRINCIPLES APPLYING TO
PATTERN OR PRACTICE DISPARATE A. Raising An Inference of Discrimina-
TREATMENT CLAIMS tion With Statistical Evidence
In a typical sex discrimination pattern or A disparity between the selection rates
practice disparate treatment case, plaintiffs of men and women for a particular job or
allege the existence of a disparity between job benefit has one of three possible
men and women in selection rates for a causes. See D. Baldus & J. Cole, Statisti-
particular job or job benefit and further cal Proof of Discrimination 291 (1980).
allege that this disparity was caused by an First, the disparity may be a product of an
unlawful bias against members of the dis- unlawful discriminatory animus; this is
486
PALMER v. SHULTZ 91
Cite as 815 FJd 84 (D.C.Clr. 1987)
what plaintiffs are attempting to prove. the possibility that chance caused the dis-
Second, the disparity may have a legitimate parity. Nor can statistics determine, if
and nondiscriminatory cause. For exam- chance is an unlikely explanation, whether
ple, prior experience of a certain type may the more probable cause was intentional
be an important factor in making certain discrimination or a legitimate nondiscrimi-
employment decisions, and if it happened to natory factor in the selection process. See
be true that women on the average have id. at 290-92.
less of this experience than men, one would
expect that women could be selected less [3] Title VII nevertheless provides that
frequently. Third, the disparity may simply if the disparity between selection rates for
be a product of chance. Even if we may men and women is sufficiently large so
properly assume that, as a general rule, that the probability that the disparities re-
women and men on average are equally sulted from chance is sufficiently small,
qualified to be selected for a particular job then a court will infer from the numbers
or job benefit, for any particular group of alone that, more likely than not, the dispar-
men and women who happen to constitute ity was a product of unlawful discrimina-
the actual pool of eligible candidates at the tionunless the defendant can introduce
time the selections are made, there may be evidence of a nondiscriminatory. explana-
some deviation from this general rule be- tion for the disparity or can rebut the infer-
cause the actual qualifications of men and ence of discrimination in some other way.
women differ from individual to individual See Hazelwood School District v. United
and any particular pool of eligible candi- States, 433 U.S. 299, 307-08, 97 S.Ct. 2736,
dates constitutes an inherently random col- 2741, 53 L.Ed.2d 768 (1977) ("Where gross
lection of individuals. Thus, even if selec- statistical disparities can be shown, they
tions were made entirely on the basis of alone in a proper case constitute prima
qualification, without a trace of discrimina- facie proof of a pattern or practice of dis-
tory bias, random deviations in the selection crimination."); see also Segar, 738 F.2d at
rates for men and women may result. 1278 ("[W]hen a plaintiffs methodology fo-
A statistical analysis of a disparity in cuses on the appropriate labor pool and
selection rates can reveal the probability generates evidence of [a disparity] at a
that the disparity is merely a random devia- statistically significant level," this evidence
tion from perfectly equal selection rates. alone will be "sufficient to support an in-
Statistics, however, cannot entirely rule out ference of discrimination.").*
6. As the quotation from Segar reflects, the statis- cations, this circuit has developed a require-
tical analysis must focus "on the appropriate ment that statistical evidence of disparities ac-
labor pool" in order to properly establish a count for the minimum objective qualifications
prima facie case of discrimination. If a statisti- for the position at issue." Segar v. Smith, 738
cal analysis of selection rates is premised on a F.2d 1249, 1274 (1984), cert, denied sub. nom.
faulty calculation of the number of men and Meese v. Segar, 471 U.S. 1115, 105 S.Ct. 2357, 86
women who are eligible for selection, as a re- L.Ed.2d 258 (1985) (emphasis in original) (cita-
sult, for example, of a misunderstanding of the tions omitted). Conversely, as long as a plain-
eligibility criteria, the statistical conclusions tiffs statistical analysis has properly defined the
lose much of their probative force. If, for in- pool of eligible candidates, by accounting for
stance, to be eligible for a promotion from as- "minimum objective qualifications," the -burden
sistant professor to professor at a particular then shifts to the defendant to introduce evi-
university a person must have seven years expe- dence of a legitimate, nondiscriminatory expla-
ne ce
? and a Ph.D. degree, a statistical study nation if the analysis reveals a statistically sig-
which defines the number of women and men nificant disparity. Id. at 1276. In this case,
eligible for this promotion as those with seven there is no dispute that appellants properly ac-
year
*'experience, overlooking the requirement counted for the minimum objective qualifica-
r a Ph.D. degree, might lead to skewed results, tions for the various positions and benefits that
ror there might well be some reason why more are the subject of their disparate treatment
remaic than male assistant professors had not claim. Instead, this case involves disputes
achieved a Ph.D. degree after seven years of about whether the government succeeded in
demonstrating the existence of other, legitimate
m^k1?", < l n o r d e r t o e n s u r e tha a plaintiffs factors that would explain the apparent dispari-
methodology has eliminated the common non-
Q
scnnunatory explanation of a lack of qualifi- ties in selection rates, or whether it demonstrat-
487
[4] The preliminary question for a tistical significance at the .05 level." Id. at
court, then, is at what point is the disparity in 1283 n. 28. In this case, the District Court
selection rates is sufficiently large, or the cited Segar in its Conclusions of Law, stat-
probability that chance was the cause suffi- ing: "The Court adopts the .05 level for
ciently low, for the numbers alone to estab- establishing that a [statistical] study is sta-
lish a legitimate inference of discrimina- tistically significant." 616 F.Supp. at 1559
tion. Although this question is crucial in (1114). But the District Court then went on
Title VII litigation, the answers given by to say that "[t]he .05 level generally corre-
courts have been regrettably imprecise. sponds to 1.65 standard deviations." Id.
The Supreme Court has twice stated that
"[a]s a general rule for ... large samples, How can a 5% probability of randomness
if the difference between the expected val- correspond both to a measurement of two
ue and the observed number is greater standard deviations and a measurement of
than two or three standard deviations, then 1.65 standard deviations, one may reason-
the hypothesis that [the disparity] was ran- ably ask? There is a legitimate answer: it
dom would be suspect to a social scientist." depends on whether one is using a "one-
Castaneda v. Partida, 430 U.S. 482, 497 n. tailed" or a "two-tailed" test of statistical
17, 97 S.Ct 1272, 1281, n. 17, 51 L.Ed.2d significance. A disparity measuring 1.65
498 (1977); see also Hazelwood, 433 U.S. at standard deviations corresponds to a 5%
309 n. 14, 97 S.Ct. at 2742 n. 14 (quoting probability of randomness under a one-
Castaneda). But many lower courts and tailed test. A disparity measuring two
commentators have noted that the differ- standard deviations (to be more precise,
ence between two and three standard devi- 1.96 standard deviations) corresponds to a
ations is considerable and that, therefore, 5% probability of randomness under a two-
the Supreme Court's statement falls short tailed test.
of establishing an exact legal threshold at This difference between one-tailed and
which statistical evidence, standing alone, two-tailed tests obviously requires further
establishes an inference of discrimination. explanation. It also presages the obvious
See, e.g., Segar, 738 F.2d at 1283 n. 28.7 question, given the substantial differences
This court, using different terminology, in result, of which test is the more appro-
has stated that statistical evidence meeting priate one to use in Title VII cases. Nei-
"the .05 level of significance ... [is] cer- ther this court's opinion in Segar nor the
tainly sufficient to support an inference of District Court's opinion in this case discuss-
discrimination." Segar, 738 F.2d at 1283. es the difference between "one-tailed" or
"(T]he .05 level," the Segar opinion ex- "two-tailed" approaches. The Supreme
plained, "indicates that the odds are one in Court has given us no explicit guidance on
20 that the result could have occurred by this issue. And, unfortunately, neither
chance." Id. at 1282. (This statement is side to this litigation has devoted more
somewhat imprecise and has predictably than a single footnote each to this difficult
led to confusion, as we discuss infra.) The but important issue. See Appellants' Reply
Segar court justified the consistency of its Brief at 32 n. 38; Appellee's Brief at 62 n.
statement with the statements of the Su- 73. For obvious reasons we, too, confront
preme Court by observing that "[a] level of this issue with some trepidation. But ap-
two standard deviations corresponds to sta- pellants' and appellee's evidence on the un-
ed other methodological flaws or inadequacies a group of numbers equal to the square root of
in appellants' statistics. For a discussion of the the variance of that group of numbers." D.
legal principles involved in evaluating attempts Baldus & J. Cole, Statistical Proof of Discrimina-
to rebut plaintiffs' statistics, see, infra, Part III. tion 359 (1980) (emphasis in original). The
B. "variance" of the group of numbers is computed
7. The "standard deviation" is a unit of measure- by subtracting the "mean," or average, of all
ment that allows statisticians to measure all the numbers, "squaring the resulting difference,
types of disparities in common terms. Techni- and computing the mean of these squared dif-
cally, a "standard deviation" is defined as "a ferences." Id. at 361.
measure of spread, dispersion, or variability of
488
PALMER v ,SHULTZ 93
Cite as 815 FJd 84 (D.CClr. 1987)
derpromotion of women from FSO class 5 one standard deviation (a) distance from
to class 4 measures 1.88 and 1.76 standard the mean (ji) of a normal distribution is
deviations, respectively. (The difference always the same for all normal distribu-
results from the use of some different tions (regardless of the specific value of a
data. See 616 F.Supp. at 1557 (11130).) or p., or the units in which these terms
Whether one adopts the appellants' or the are measured). Thus, the probability of a
appellees' number as the better evidence, it result randomly occurring that measures
falls between 1.65 and 1.95 standard devia- within one standard deviation of the mean
tions. Therefore, if one tests the statistical of the distribution (either greater or lesser
significance of this number using the Se- than the mean) is the same for all normal
gar standard of a 5% probability of ran- distributions: 68.26%. Id. Indeed, this re-
domness, the outcome turns on whether lationship holds true for any distance from
one uses a one-tailed or two-tailed test the mean, measured in numbers of stan-
Under a one-tailed test, the number is sta- dard deviations. For example, the proba-
tistically significant (because it is larger bility of a result occurring within two stan-
than 1.65 standard deviations, which corre- dard deviations from the mean is 95.44%
spondents to a 5% probability of random- and the probability of a result occurring
ness under a one-tailed test) and therefore within three standard deviations is 99.73%.
by itself establishes a prima facie case of See Diagram 1. Thus, for all normal distri-
disparate treatment Under a two-tailed butions, the probability of randomness is
test, the number does not quite reach the directly associated with a measurement in
statistically significant threshold (because numbers of standard deviations.
it is smaller than 1.96 standard deviations,
which corresponds to a 5% probability of
randomness using a two-tailed test) and
therefore by itself does not raise an infer-
ence of discrimination.
Given the unavoidability of embarking
upon a journey into the statistical maze, we
begin with the terms "one-tailed" and
"two-tailed";8 they refer to the "tails" or M
T T 20* 3
ends of the bell-shape curve, which repre-
sents in graph form a "random normal
distribution." E.g., W. Curtis, Statistical
I 4.2t% of o r M
5.44% of ara
Concepts for Attorneys 72-73 (1983); see
' . 99.73% of or*a
Diagram 1 copied from id. In these ran-
dom distributions, the area under any seg- Diagram 1
ment of the bell curve measures the proba- But for every deviation from the mean of
bility of that range of results occurring a normal distribution, measured in a cer-
randomly. Id. Furthermore, the percent- tain number of standard deviations, there
age area underneath the bell curve within are two distinct ways of referring to the
8. The discussion of statistics in this portion of of this case. Nor do we pretend to cover all of
the opinion relies on the following sources: D. the issues that relate to the use of statistics in a
Baldus & J. Cole, Statistical Proof of Discrimina- Title VII case. For example, we note that there
tion (1980 & 1986 Supp.); W. Curtis, Statistical are various methods for deriving a "test statis-
Concepts for Attorneys (1983); W. Dixon & F. tic" measured in numbers of "standard devia-
Massey, Jr., Introduction to Statistical Analysis tions": the z-test, the t-test, etc. We have no
(4th ed. 1983); B. Lindgren & D. Berry, Elemen- opinion on the choice of these methodologies as
tary Statistics (1981) [hereinafter cited as Ele- this case does not call them into question. Sim-
mentary Statistics]; R. Wehmhoefer, Statistics ilarly, we are aware that our discussion of statis-
in Litigation (1985). tics requires sufficiently "large" samples in or-
We are not expert statisticians and we discuss der to be accurate; we have avoided the "small
statistics only insofar as necessary to give a sample problem" because apparently none of
comprehensible explanation of our view of the the claims on appeal here involves small sam-
proper application of Title VII law to the facts ples.
489
probability of that result occurring random- treme ends of the bell curve. Compare
ly. For example, if fewer women than Diagrams 2 and 3, copied from V. Cangelo-
expected were selected for a particular job, si, P. Taylor & P. Rice, Basic Statistics
and this disparity measured 2.17 standard 173-74 (1979). For this reason, a 5% proba-
deviations, we can ascertain the probability bility of randomness corresponds to 1.65 or
that women by chance would be underse- 1.96 standard deviations, depending upon
lected to this extent or greater. This prob- whether one uses a one-tailed or a two-
ability corresponds to the area between tailed test. (Similarly, 1.65 standard devia-
2.17 standard deviations and the end of the tions correspond to a 10% probability of
bell curve representing the most extreme randomness under a two-tailed test; and
underselection of women. Standard statis- 1.96 standard deviations correspond to a
tical tables reveal that this probability is 2.5% probability of randomness under a
only 1.5%. See B. Lindgren & D. Berry, one-tailed test.)
Elementary Statistics 479 (1981).
We can speak of the probability measure-
ment associated with 2.17 standard devia-
tions in another way, however. Although
the observed disparity between the actual
and expected number of women in this
example was an underselection of women,
there is a corresponding possibility that
women might randomly be overselected
such that the difference between the ex-
pected number of women selected and the Region of Acceptance
number of women selected due to this ran-
A
dom overselection also measures 2.17 stan- A
dard deviations. The probability of a ran-
Region of Re|ion or
dom deviation from the expected number of
'1m
Rejec. Reject
i.
~)
women selected with a magnitude of 2.17
standard deviations or larger, resulting
from either an underselection or overselec-
Diagrams
tion of women, corresponds to the area
under the bell curve between 2.17 standard We are now, hopefully, in a position to
deviations and both extremes of the curves: address whether in a Title VII case, a court
3%. should use a one-tailed or two-tailed test to
The difference between "one-tailed" and determine whether statistical evidence
"two-tailed" tests of statistical significance alone should raise an inference of unlawful
stem from these two different ways of discrimination, recognizing that there is a
measuring probability. If one decides (as difference of opinion among courts and
the Segar court did) to reject the hypothe- commentators off the issue. Compare,
sis that an observed disparity from an ex- e.g., EEOC v. Federal Reserve Bank of
pected result occurred randomly only if the Richmond, 698 F.2d 633 (4th Cir.1983),
observed disparity falls within the range of rev'd on other grounds sub. nom. Cooper
the 5% most extreme possible disparities, v. Federal Reserve Bank of Richmond,
one must still decide whether the 5% range 467 U.S. 867, 104 S.Ct. 2794, 81 L,Ed.2d 718
should be entirely within only one of the (1984), with Little v. Master-Bilt Products,
tails of the bell curve, or instead should be Inc., 506 F.Supp. 319 (N.D.Miss.1980). In-
divided with half of the range in each tail. deed, one leading treatise on the role of
Five percent of the total bell curve can be statistical evidence in Title VII litigation
found either in the range from 1.65 stan- has shifted its position between the publica-
dard deviations from the mean to one ex- tion of the main text and the publication of
treme end of the bell curve or in the area a supplement. In the main text of their
from 1.96 standard deviations to both ex- book, Baldus and Cole write:
490
PALMER v. SHULTZ 95
Cite as CIS F J d 84 (D.C.Cir. 1987)
[S]tatistical texts frequently recommend would simply be interpreted as being a
the use of a one-tailed test when the only chance outcome in an equitable process.
question of interest is the likelihood of a Id. at 130 n. 38.
difference in one direction, e.g., when Although the latest position adopted by
only a positive disparity between two Baldus and Cole makes some sense, we
numbers is of interest. This practice reject its applicability to the present case.
supports the use of a one-tailed test in We note that some of appellants' claims of
discrimination cases, since the issue is unlawful discrimination involved com-
always whether one group is favored plaints that women were overselected for
over another. A defendant will argue, particular kinds of jobs, e.g., consular cone
however, that both minority and majority and downstretch assignments. Appellants
groups [or men and women] are protect- undoubtedly have the right under Title VII
ed from discrimination and it is therefore to object to the State Department's selec-
inequitable to disregard the probability tion of FSOs for these positions on the
of outcomes that may favor either group. basis of sex. Such claims of discriminatory
Since there is no clear answer to this overselection, however, require a two-tailed
question, the most desirable approach is statistical analysis. Appellants may view
an awareness of the conceptual and prac- consular assignments as inferior to political
tical differences between the two types assignments, but another class of women
of tests and a consistent use of the same plaintiffs could certainly bring a Title VII
type of test in similar cases whenever claim if women were intentionally underas-
practical. We have used two-tailed tests signed to the consular cone. Consequently,
throughout this book. statistically significant deviations in either
D. Baldus & J. Cole, Statistical Proof of direction from an equality in selection rates
Discrimination 307-08 (1980) (footnote would constitute a prima facie case of un-
omitted). In the most recent supplement, lawful discrimination. Indeed, appellants'
however, the authors criticize as "unneces- own statistical expert testified that a two-
sarily strict" the Fourth Circuit's decision tailed test was necessary in evaluating the
in EEOC v. Federal Reserve Bank of Rich- disparity between men and women in as-
mond to require a two-tailed approach un- signments to the consular cone because the
less "independent evidence indicates the hypothesis to be tested is whether cone
presence of discrimination of the type be- assignments are made without regard to
ing challenged." D. Baldus & J. Cole, Sta- sex. See Transcript (Tr.) at 1081.
tistical Proof of Discrimination 129 (1986 We also think a two-tailed test of statisti-
Cumulative Supp.) (footnote omitted). Bal- cal significance should be applied to all of
dus and Cole then state a preference for a appellants' discrimination claims in this
legal rule that would allow a one-tailed test case. First, Baldus and Cole originally not-
"if the possibility of intentional discrimina- ed the importance of consistency in evalu-
tion favoring the protected group repre- ating statistical evidence. Second, al-
sented by plaintiff [e.g., women in this though we by no means intend entirely to
case] can be ruled out as defying logic, i.e., foreclose the use of one-tailed tests, we
âvailable evidence excluding the statis- think that generally two-tailed tests are
tic in question gives strong support to the more appropriate in Title VII cases. After
conclu8ion that the system is either nondis- all, the hypothesis to be tested in any dis-
criminatory or disadvantageous to the parate treatment claim should generally be
Plaintiffs group." Id. at 129-30. In a that the selection process treated men and
footnote to this passage, the authors con- women equally, not that the selection pro-
tinue: cess treated women at least as well as or
The logic underlying this statement is better than men. Two-tailed tests are used
ttet if one can be certain that there was where the hypothesis to be rejected is that
no discrimination in favor of plaintiffs certain proportions are equal and not that
Pûp then any disproportionate impact one proportion is equal to or greater than
491
the other proportion. See Curtis, supra, at low, we do not think that it is low enough
119-22, 133-37. to establish by itself an inference of unlaw-
Moreover, even if a disparity in only one ful discriminatory animus. We think that
direction is at issue in a particular Title VII statistical evidence must meet the 5% level
case {e.g., only the underpromotion and not referred to in Segar for it alone to estab-
the overpromotion of women), we think lish a prima facie case under Title VII.
that the more appropriate assessment of Taken together, as we have said, a two-
the probability that the contested disparity tailed test and a 5% probability of random-
resulted from chance requires a recognition ness require statistical evidence measuring
that a .random disparity of equal magni- 1.96 standard deviations. Consequently, if
tude, but in the opposite direction, is equal- plaintiffs come into court relying only on
ly as likely. For example, if plaintiffs in a evidence that the underselection of women
Title VII case come into court simply with for a particular job measured 1.75 standard
evidence that women were underselected deviations, it seems improper for a court to
for a particular job, and that this disparity establish an inference of disparate treat-
measured 1.75 standard deviations, it is ment on the basis of this evidence alone.'
perfectly true that the probability of wom- [5] Of course, plaintiffs in Title VII pat-
en being underselected to this extent or tern and practice cases need not rely on
more by chance is only 4%. Under a one- statistical evidence alone. Because the ul-
tailed test of statistical significance, em- timate issue in a disparate treatment case
ploying the 5% level, as this court did in is whether the disparity resulted from un-
Segar, this evidence alone would establish lawful discriminatory animus, plaintiffs
a prima facie case of disparate treatment may introduce any additional evidence
But for a disparity measuring 1.75 stan- which is probative on this issue. Thus,
dard deviations it is equally true that the plaintiffs are in no way foreclosed from
probability of a random deviation of this establishing an inference of discrimination
magnitude or larger, either underselecting simply because the contested disparity falls
or overselecting women, is 8%. In other short of the 1.96 standard deviations mark
words, disparities of this magnitude will be when analyzed statistically. Obviously, to
consistent with the hypothesis that the se- use an extreme example, if an employer
lection process did not treat men and wom- admits under cross-examination that as-
en differently in 8% of the cases. Even if signments for a certain position were based
in the case before the court the disparity in large part on sex, it matters not that the
disfavors women and not men, how can the observed underselection of women mea-
court ignore the possibility that the case sures only 1.75 standard deviations. When
might still be one of the 8% cases in which plaintiffs in a Title VII pattern or practice
a fair selection process would by chance case rely on evidence in addition to the
produce disparities in this magnitude or evidence of the disparity itself, the issue
greater? Thus, we think a court should for the trier of fact in determining whether
generally adopt a two-tailed approach to the plaintiffs have established a prima facie
evaluating the probability that the contest- case must be whether the totality of plain-
ed disparity resulted by chance. Further- tiffs' evidence (again including the evidence
more, although an 8% probability is pretty of the disparity itself) demonstrates that,
9. In any event, given the language of the Su- case by evidence of disparity measuring lower
preme Court in Castenada and Hazelwood, we than 1.96 standard deviations, this decision un-
do not believe that we can allow the threshold der the current law must be made by the Su-
at which statistical evidence alone raises an preme Court (or Congress). Cf. Meier, Sacks &
inference of discrimination to be lower than Zabell, "What Happened in Hazelwood," reprint-
1.96 standard deviations, whether one views this ed in, M. DeGroot, S. Fienberg & J. Kadane,
number as signifying a 5% probability of ran- Statistics and the Law 15 (1986) (adopting 1.96
domness using a two-tailed approach or a 2.5% standard deviations as the threshold for Title
probability of randomness using a one-tailed VII cases even under the assumption that one
approach. If plaintiffs in Title VII cases are should use a one-tailed test in Title VII litiga-
ever to be allowed to establish a prima facie tion).
492
PALMER v, SHULTZ 97
Cite as 815 FJd 84 (0.C.CIr. 1987)
more likely than not, the disparity resulted [6] From this statutory language, two
from an unlawful discriminatory animus legal principles necessarily follow. First,
just as the issue after all the relevant evi- appellants in this case may bring a dispar-
dence has been introduced by both sides ate treatment claim regarding discrimina-
remains whether in light of the totality of tion in any type of personnel decision re-
the evidence, plaintiffs have shown that, gardless of whether or not that discrimina-
more likely than not, the disparity resulted tion has an effect on other, arguably more
from discrimination.10 important, personnel decisions. Thus, if
the State Department has intentionally dis-
B. The Applicability of Title VII to Any criminated against women in certain types
Personnel Action of assignment decisions, the State Depart-
A plaintiff may bring a Title VII claim ment has violated 42 U.S.C. 2000e-16
for alleged discrimination with respect to even if the State Department can prove
any employment decision by an agency of that the unlawful discrimination in assign-
the federal government. The statute itself ments did not adversely affect the opportu-
states that "all personnel actions affecting nities of women for promotion in the For-
employees or applicants for employment eign Service.
... shall be made free from any discrimina-
tion based on ... sex." 42 U.S.C. 2000e- It is beyond dispute that the State De-
16. In the Foreign Service Act of 1980, partment may not discriminate against
Congress reiterated this requirement spe- women in making any kind of employment
cifically for Foreign Service employment decision, and if the State Department
practices. 22 U.S.C. 3905." Moreover, breaches this requirement, appellants have
in the 1980 Act, Congress specifically de- a cause of action to vindicate their statu-
fined a "personnel action," which must be tory rights. We note, as further support
free from sex discrimination, to encompass of our interpretation of 42 U.S.C. 2000e-
"(A) any appointment, promotion, assign- 16, that the Supreme Court last Term inter-
ment (including assignment to any position preted an analogous Title VII provision ap-
or salary class), award of performance pay plying to private employers to encompass a
or special differential, within-class salary claim of sex discrimination for sexual
increase, separation, or performance evalu- harassment even if the sexual harassment
ation and (B) any decision, recommenda- caused no tangible or economic loss. Meri-
tion, examination, or ranking provided for tor Savings Bank, FSB v. Vinson,
under this chapter which relates to any U.S. , 106 S.Ct. 2399, 91 L.Ed.2d 49
action referred to in subparagraph (A)." (1986). The provision of Title VII involved
Id- This language could hardly be more in Vinson makes it "an unlawful employ-
inclusive. ment practice for an employer . . . to dis-
w
> In this respect, we follow the approach to distance on their own. But cf., Meier, Sacks &
statistical evidence adopted in Craik v. Minneso- Zabell, supra n. 9, at 12 (the appropriate inter-
ta State University Ed., 731 F.2d 465. 476 n. 13 mediate zone falls between 1.96 and 2.33 stan-
(8th Cir.1984): dard deviations).
Statistical evidence showing less marked dis-
crepancies [than two standard deviations] will 11. 22 U.S.C. 3905 states explicitly that "all
not alone establish something other than personnel actions . . . shall be made in accord-
chance is causing the result, but we shall ance with merit principles," which excludes sex
consider it in conjunction with all the other or race as a permissible criterion for a job
relevant evidence in determining whether the action. See H.R.Rep. No. 992, pt. 1, 96th Cong.,
discrepancies were due to unlawful discrimi- 2d Sess. 8 (1980). Furthermore, this section
nation. goes on to direct the Secretary of State to "pre-
Jhis approach follows Baldus and Cole in view- scribe such rules as may be necessary to ensure
8 disparities between 1.65 and 1.96 standard that members of the Service, as well as appli-
deviations as falling into an "intermediate" cants for appointments in the Service . . . are
Baldus
free from discrimination on the basis of . . .
NumK- * C o k <SuP-> a t 1 3 1 ~ 3 2 - sex." 22 U.S.C. 3905(b). The statute also
mbers m this intermediate range go some of
me way toward establishing a prima facie case states that this section docs not extinguish any
ais
cntnination. but they cannot make the rights under Title VII. Id. 3905(e).
493
criminate against any individual with re- that under 42 U.S.C, 2000e-16 plaintiffs
spect to his compensation, terms, condi- need not prove discrimination in personnel
tions, or privileges of employment, because actions other than those specifically at is-
of such individual's ... sex." 42 U.S.C. sue. The evidence supporting an inference
2000e-2(a)(l). The language of 42 U.S.C. of unlawful discrimination in certain em-
2000e-16, involved here, is even broader, ployment decisions may be sufficiently
covering "all personnel actions" based on strong that evidence of nondiserimination
sex, regardless of whether the personnel in other employment decisions cannot rebut
action affects promotions or causes other this inference. Thus, in some cases the
tangible or economic loss. strength of appellants' prima facie case is
[7] Second, and relatedly, if plaintiffs in so great that even if they were to agree to
a Title VII case claim discrimination in a stipulation that sex discrimination did not
certain kinds of employment decisions, it is occur in other employment decisions, their
no defense that the government did not evidence as to the employment decisions
discriminate against women in other kinds specifically at issue would still prove that,
of employment decisions. For example, if more likely than not, unlawful discrimina-
the State Department intentionally under- tion occurred.
selected women for appointment as Deputy When all the evidence raising and rebut-
Chiefs of Mission (DCM), the State Depart- ting the inference of discrimination is sta-
ment has violated 42 U.S.C. 2000e-16 tistical, according the proper deference to
even if the State Department can prove each legal principle is a delicate task in-
that it did not discriminate against women deed. If Title VII plaintiffs are able to
in assignments to five other "high visibili- muster only the most marginal inference of
ty" positions. Appellants need not allege discrimination in only one type of job deci-
or prove discrimination in assignments to sion (e.g., the underselection of women in
other "high visibility" positions in order to one promotional class measures only 1.98
maintain a cause of action with respect to standard deviations), then an inference of
discrimination in DCM assignments. As discrimination may be undercut by the fact
the Supreme Court has stated: "Of course, that women are demonstrably not underse-
Title VII provides for equal opportunity to lected in other similar job decisions. But
compete for any job." Teamsters, 431 even here courts must be wary. Evidence
U.S. at 338 n. 18, 97 S.Ct. at 1856 n. 18 that the underselection of women in anoth-
(emphasis in original). er similar job decision measures just below
Although under 42 U.S.C. 2000e~16 the 1.96 threshold, while not sufficient to
appellants must not be required to prove prove discrimination, is not compelling evi-
discrimination in employment decisions oth- dence that the employer did not discrimi-
er than the ones they are specifically con- nate in this other employment decision.
testing, the government is correct in argu- [8] Thus, when plaintiffs in a Title VII
ing that evidence of nondiserimination in case introduce statistical evidence of an
those other employment decisions may be extreme disparity in the selection rates for
probative of whether intentional discrimina- men and women for a certain type of job,
tion actually occurred in the contested em- the fact that these plaintiffs have insuffi-
ployment decisions. For example, if an cient evidence to establish an inference of
employer can demonstrate that it did not discrimination regarding other employment
discriminate against women at several decisions should not block an inference of
steps of a promotional ladder, that evi- discrimination on the specific type of em-
dence, in some circumstances, may reason- ployment decision at issue. For example, if
ably suggest that the employer did not Title VII plaintiffs present evidence that
discriminate in the step at issue either. the underselection of women for a particu-
But courts must be especially careful in lar type of job assignment measures above
judging the relevance of this kind of evi- 3.0 standard deviations, this evidence nec-
dence lest they contravene the legal rule essarily raises an inference of discrimina-
86-974 0 - 89 - 18
494
PALMER y. SHULTZ 99
Cite u 815 FJdM (D.CClr. 1987)
tdon in these assignments regardless of the In Bazemore, the United States District
statistical evidence concerning other as- Court for the Eastern District of North
signments. The likelihood that this dispari- Carolina was presented with statistical evi-
ty in the selection rate for men and women dence that black employees of the North
is merely a random deviation in a selection Carolina Agricultural Extension Service re-
process that treated men and women equal- ceived substantially lower salaries than
ly is simply too low (l-in-500 using a two- white employees working in the same job
tailed approach) for statistical evidence re- positions. The District Court determined
garding other assignment decisions to re- that "the statistical evidence of plaintiffs
but this evidence. In these circumstances, standing alone and without further expla-
the Title VII defendant must present evi- nation probably suffices to make out a
dence directly relating to the type of as-
prima facie showing of discrimination in
signment at issue to explain the evident
salaries." Civil Action No. 2879, Mem. Op.
disparity in a legitimate, nondiscriminatory
at 47 (August 22,1982). The defendants in
fashion. For a district court to reject plain-
Bazemore, however; argued that plaintiffs'
tiffs' claim of discrimination in such a case
on the grounds that plaintiffs failed to statistics failed to account for several
raise an inference of discrimination in other factors, any of which would provide a legit-
job assignments would effectively amount imate, nondiscriminatory explanation for
to a requirement that plaintiffs prove dis- the salary disparities. Id. at 48. The Dis-
crimination in employment decisions other trict Court agreed with the defendants,
than those specifically at issue. And, as holding that because defendants had dem-
we have said, such a requirement would onstrated that these other factors might
directly conflict with the express provisions have caused the salary disparities, defend-
of 42 U.S.C. 2000e-16. ants successfully rebutted plaintiffs' infer-
ence of disparate treatment:
C. Rebutting the Inference of Disparate Having thoroughly considered all of the
Treatment evidence bearing on the salary issue and
As we have discussed, under Title VII the contentions of the parties based
courts will initially infer that a disparity thereon, the court has concluded that if it
between men and women in selection rates be assumed that plaintiffs made out a
for a particular job or job assignment re- prima facie case on this issue, it has only
sults from unlawful discrimination if the been by virtue of the plaintiffs' statisti-
disparity is large enough: ie., measures at cal evidence . . . ; that because of their
feast 1.96 standard deviations. But defend- failure to include many of the vital
ants in Title VII cases must be offered an factors necessary to be considered in fix-
opportunity to rebut this inference by ing salaries the probative force of these
showing that the disparity, albeit nonran- statistics has been so substantially un-
dom in cause, resulted from some legit dermined that they cannot sustain a find-
nâte, nondiscriminatory factor. Similarly, ing of purposeful discrimination in sala-
defendants must be allowed to rebut the ries . . . ; that the defendants have not
inference of discrimination by, alternative- only "articulated" plausible reasons for
ly, challenging the statistical calculations the seeming salary disparities, but have
opon which the inference of discrimination
18 satisfied the court of the validity of their
} * * * * - F o r example, the statistics may
explanations It follows that plain-
'ely on faulty data, flawed computations,
or improper methodologies. A recent Su- tiffs have failed to establish by a prepon-
Pwme Court opinion provides courts with derance of the evidence that the Exten-
e guidance on how to treat attempts to sion Service has discriminated against
attack an inference of discrimination based black employees in the matter of sala-
* statistical evidence alone. See Baze- ries.
<e v. Friday, U.S. , 106 S.Ct Id. at 54-55 (citation and footnotes omit-
iQ00
, 92 L.Ed.2d 315 (1986). ted).
495
100 815 FEDERAL REPORTER, M SERIES
The Fourth Circuit affirmed this determi- scientific certainty; rather his or her bur-
nation by the District Court in Bazemore, den is to prove discrimination by a pre-
See 751 F.2d 662 (1984). The appellate ponderance of the evidence.
court referred specifically to two flaws in 106 S.Ct. at 3009." Thus, imperfections in
the plaintiffs' statistics as grounds on the data on which the analysis depends, or
which the District Court could legitimately the omission of possible explanatory
rely in ruling for the defendant. "In the factors from a plaintiffs statistical study,
first place," the Fourth Circuit stated, the is not necessarily fatal to an inference of
plaintiffs' statistics "contained salary fig- discrimination. "While the omission of var-
ures which reflect the effect of pre-Act
iables from a regression analysis may ren-
discrimination, a consideration not action-
der the analysis less probative than it oth-
able under Title VII but permissible [only]
erwise might be," the Justices held, "as
to show the general background of the
case, or intent, or to support an inference long as the court may fairly conclude, in
that such discrimination continued." 751 light of all the evidence, that it is more
F.2d at 672 (footnote omitted). Second, the likely than not that impermissible discrimi-
appellate court noted that plaintiffs' statis- nation exists, the plaintiff is entitled to
tical study of salaries did not take into prevail." Id.
account "across-the-board and percentage Elsewhere in the opinion, Justice Bren-
pay increases which varied from county to nan makes plain that the determination by
county." Id. The court stated that "[t]he the District Court whether discrimination
across-the-board and percentage pay in- exists or not "is subject to the clearly erro-
creases granted by the various counties in neous standard of appellate review." Id.
varying amounts, as well as simply paying at 3008. While the Supreme Court remand-
higher salaries, are bound to have an effect ed the case to the Fourth Circuit to defi-
on the salaries of the agents in the various nitely determine whether "based on the
counties." Thus, the appellate court held entire evidence in the record," the District
that "the district court was not required to Court's decision had been clearly errone-
accept [the plaintiffs' statistics] as proof ous, the Justices did declare, "we think that
[of discrimination] by a preponderance of consideration of the evidence makes a
the evidence." Id. The court went on to strong case for finding the District Court
say that "appropriate" statistics "should clearly erroneous." Id. at 3010-11 (foot-
include all measurable variables note omitted). Rather than viewing the
thought to have an effect on salary level." inclusion of "pre-Act" salaries in the statis-
Id. tical study as rendering the study fatally
[9] The Supreme Court reversed. In a flawed, the Supreme Court stated that "ev-
unanimous opinion for the Court, Justice idence of pre-Act discrimination is quite
Brennan responded to the Fourth Circuit's probative." 106 S.Ct at 3010 n. 13. Sim-
"plainly incorrect" approach to statistical ilarly, the Supreme Court rejected the as-
evidenoe: sumption made by both the District Court
Importantly, it is clear that a [statistical] and the Fourth Circuit that county-to-coun-
analysis that includes less than "all mea- ty variations in certain pay increases un-
surable variables" may serve to prove a dermined plaintiffs' statistical conclusions:
plaintiffs case. A plaintiff in a Title VII "Absent a disproportionate concentration
suit need not prove discrimination with of blacks in such counties, it is difficult, if
12. Because the Supreme Court was sharply di- cal analysis because it reflected pre-Title VII
vided on a separate issue in the Bazemore case, salary disparities, and in holding that petition-
the Supreme Court's unanimous opinion on this ers' regressions were unacceptable as evi-
issue comes in the unusual form of a concur- dence of discrimination.
ring opinion. The Court issued a short per 106 S.Ct. at 3002. As Justice Brennan's opinion
curiam opinion stating: reflects the reasoning of the unanimous Court,
We hold, for the reasons stated in the opinion we have dispensed with the conventional prac-
of Justice BRENNAN, . . . the Court of Ap- tice of citing to it as a concurring opinion.
peals erred in disregarding petitioners' statisti-
496
PALMER v. SHULTZ 101

CMc81SFJdM (D.CCir. 19S7)
not impossible, to understand how the fact than whites, The government argued that
that some counties contribute less to sala- blacks were less likely than whites to have
ries than others could explain disparities an extra year of "specialized experience"
between black and white salaries." Id. at over and above minimal qualifications. We
3010. rejected the argument because the DEA
[10] Thus, Bazemore instructs lower failed to introduce any evidence to substan-
courts to be cautious about dismissing tiate its assertion:
plaintiffs' statistical studies as not proba- Since DEA has presented no admissible
tive simply because defendant offers some evidence that black agents are more like-
nondiscriminatory explanation for the dis- ly than white agents to lack a second
parities shown. Implicit in the Bazemore year of requisite experience, plaintiffs'
holding is the principle that a mere conjec- failure to account for this variable does
ture or assertion on the defendant's part not dilute the force of their'statistical
that some missing factor would explain the analysis; ... absent any reason to con-
existing disparities between men and wom- clude that the omitted factor correlates
en generally cannot defeat the inference of with race, the omission of this variable
discrimination created by plaintiffs' statis- will not affect the validity of the race
tics. To be sure, as the Supreme Court coefficient in the plaintiffs' regression
acknowledged in Bazemore, there may be a analysis.
few instances in which the relevance of a Segar, 738 F.2d at 1277." We think the
factor to the selection process is so obvious lessons of both Bazemore and Segar apply
that the defendants, by merely pointing out to this case.
its omission, can defeat the inference of
IV. A REVIEW OF THE DISPARATE
discrimination created by the plaintiffs' sta-
TREATMENT CLAIMS IN THIS CASE
tistics. See 106 S.Ct at 3009 n. 10. The
logic of Bazemore, however, dictates that Having discussed the applicable legal
in most cases a defendant cannot rebut principles, we now address the specific dis-
tatistical evidence by mere conjectures or parate treatment claims at issue in this
assertions, without introducing evidence to case. Supreme Court precedent has made
support the contention that the missing plain the appropriate standard for review-
factor can explain the disparities as a prod- ing a district court's determination that
uct of a legitimate, nondiscriminatory selec- employment decisions were not the product
tion criterion." of an unlawful discriminatory animus. We
can reverse this factual finding only if it is
This court, even before Bazemore, had clearly erroneous in light of all the evi-
explicitly endorsed the same principle, most dence in the record or if it rests on legal
recently in a situation where the govern- error. See Bazemore v. Friday, U.S.
"wnt attempted to rebut the inference of , 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986);
^"crimination arising from evidence that Anderson v. City of Bessemer City, 470
blacks in the Drug Enforcement Agency U.S. 564, 105 S.Ct 1504, 84 L.Ed.2d 518
Were paid less and promoted less rapidly (1985); Pullman-Standard v. Swint, 456
" As the Supreme Court said in Bazemore, grounds, the burden should normally be on the
lw]hetber. in fact, [plaintiffs' statistics will] challenger (a) to present credible evidence that
j*rry the plaintiffs' ultimate burden will depend the statistical proof is defective and" (b) to
10
given case on the factual context of each present a plausible explanation of how the as-
{* in light of all the evidence presented by serted flaw is likely to bias the results against
the plaintiff and the defendant" This his or her position." D. Baldus & J. Cole, Statis-
j*weniem contemplates that defendants general- tical Proof of Discrimination at vii (1986 Supp.).
V must introduce evidence to support their at-
* on plaintiffs' statistics. Mere conjectures 14. Other opinions of this court are in accord.
" " "êrtions usually will not suffice, See Trout v. Lehman, 702 F.2d 1094, 1102 (D.C.
^ e note also that leading commentators sup- Cir.1983), vacated on other grounds, 465 VS.
r j " this corollary to the Bazemore rule. Baldus 1056, 104 S.Ct. 1404, 79 L.Ed.2d 732 (1984);
j Cole emphasize that "when otherwise rele- DeMedina v. Ranhart, 686 F.2d 997, 1008 (D.C.
* evidence is challenged on methodological Cir.1982).
497
U.S. 273, 102 S.Ct 1781, 72 L.Ed.2d 66 promoted to class 4 results from a preju-
(1982). dicial attitude against women that violates
Title VII.
A. Promotions and Evaluations This evidence includes statements made
[11] The Secretary of State argues that upon cross-examination by the defense wit-
appellants' claim of "class-wide promotion ness, Benjamin Reid, who was Undersecre-
discrimination lie[s] at the heart of this tary of State for Management from 1977-
case." Appellee's Brief at 58. We agree. 1981. Reid testified that the Foreign Ser-
Appellants claim that the State Depart- vice, as a result of traditionally being
ment discriminated against women in pro- "white, male, and Ivy League," had "set
moting FSOs from class 5 to class 4 from ways of doing things" and that although
1976 to 1983. According to the govern- during his tenure the Foreign Service "had
ment's own evidence, fewer women than come a long way," it nevertheless "still had
expected were actually promoted to class 4 a long way to go" at the time he left in
during that time period, given the number correcting these biased attitudes. Tr. at
of promotion-eligible women in class 5. 3279-80. Similarly, the appellants intro-
The government's own statistical analysis, duced into evidence a report written in 1977
whose methodology the District Court by a committee within the State Depart-
found to be more accurate than appellants', ment asserting that "both attitudinal re-
concluded that the discrepancy between the sistance to equal employment opportunity
actual and expected number of women pro- and discriminatory behavior are still wide-
moted measured 1.76 standard deviations. spread in the Department" Plaintiffs' Ex-
See 616 F.Supp. at 1557; Defendant's Ex- hibit 29 at 6. The appellants also intro-
hibit 8A at 14 (Table 1, Model 2). As the duced into evidence a report published in
District Court noted, this measurement 1984 by the Women's Research and Edu-
means that the probability of an underpro- cation Institute of the Congressional Cau-
motion of women this large or larger (a cus for Women's Issues, which stated that
" 'what some identify as traditional elitist
one-tailed inquiry) occurring randomly mea-
attitudes have [worked] to limit severely
sures slightly less than 4%. 616 F.Supp. at
employment opportunities for women and
1557. As we have discussed, under a one-
minorities [in the Foreign Service].'"
tailed test this number meets the 5% level Plaintiffs' Exhibit 88 at 10 (quoting a 1981
set forth in Segar. But the corresponding report prepared by the U.S. Commission on
probability of a random deviation from the Civil Rights).
expected number of women, either favor-
ing or disfavoring women (a two-tailed in- More specifically, as proof that the un-
quiry), with a magnitude this large or larg- derpromotion of women FSOs from class 5
er is slightly less than 8%. See Defend- to class 4 resulted from a prejudicial atti-
ant's Exhibit 8A at 14 (Table 1, Model 2). tude against women, the appellants relied
Thus under a two-tailed test, this number upon evidence that the State Department
believed that women FSOs had less poten-
fails to meet the 5% level.
tial for advancement than men FSOs even
For the reasons set forth in Part III. A., though men and women FSOs performed
we do not think this evidence alone is suffi- their duties with the same skill. A random
cient to prove an intent to discriminate sample of the evaluation reports for over
against women. Appellants at trial, how- 400 FSOs in classes 5 and 6 revealed that
ever, relied on additional evidence to prove although "there was no significant differ-
a discriminatory motive. Appellants first ence in the performance ratings of men
point to evidence in the record of a general and women, . . . the disparity between men
prejudicial attitude against women within and women [in their potential ratings]
the Foreign Service during this time period measured 2.49 standard deviations." 616
and argue that this evidence supports the F.Supp. at 1549 (1162) (emphasis added).
proposition that the discrepancy between As the District Court noted, this measure-
the actual and expected number of women ment means the likelihood of women being
498
PALMER . SHULTZ 103

CIteu81SF.2dM (D.CCIr. 1987)
randomly underrated to this degree or not determine that the State Department
greater (a one-tailed inquiry) is only about did not discriminate against women in pro-
7 times in 1,000. Id. Correspondingly, the motions from class 5 to class 4 until it
likelihood of women randomly being either considers whether or not all the evidence
underrated or overrated to this degree or demonstrates a biased attitude towards
greater is 14 times in 1,000. Either way
the odds are very small indeed.15 women and their capabilities. It cannot
reject relevant evidence of discriminatory
The relevance of this evidence to wheth- intent on the basis of a conclusion that no
er the underpromotion of women from
class 5 to class 4 resulted from a discrimi- discrimination occurred without reference
natory attitude against women is obvious. to the relevant evidence. To rule otherwise
As the State Department itself asserted would convert Title VII into a Catch-22: in
and the District Court expressly found, order to establish a promotional disparate
competitive promotion decisions in the For- treatment claim, a plaintiff must prove dis-
eign Service were based primarily on an criminatory intent; but she cannot offer
"assessment of the officer's potential to proof of discriminatory intent in the form
perform at the next higher level." 616 of disparate ratings between men and
P.Supp. at 1555 (11 114); Defendant's Post women as to their potential unless she has
Trial Brief at 92. If a biased attitude to- already established a promotional disparate
wards women was causing the State De-
treatment claim. We hold that appellants
partment to underrate the potential of class
5 women FSOs in their evaluation reports, were entitled, as a matter of law, to have
even though these women were on average the District Court consider evidence in the
performing equally as well as their male ratings of a discriminatory attitude about
counterparts, one might well expect that the potential of women when evaluating
this same biased attitude would be at work appellants' disparate treatment claim con-
in the promotion decision itself. cerning promotions from class 5 to class 4.
The District Court, however, never con- Conversely, it was an error of law for the
sidered the evidence of a discriminatory District Court to "reason" backwards and
attitude about the potential of women de- dismiss appellants' claim that the disparity
rived from the evaluations in deciding in potential ratings was a violation of Title
whether appellants had proved, by a pre- VII on the grounds that the court had
ponderance of all the evidence, discrimina- already determined that the State Depart-
tory intent in the decisions pertaining to ment did not discriminate against women in
promotions from class 5 to class 4. Rath- promoting FSOs from class 5 to class 4.
er, the District Court offered the following
grounds for rejecting the evidence relating Thus, we reverse both the District
to the evaluation reports: Court's decision that the State Department
In view of the finding that female FSO's did not discriminate against women in eval-
are promoted equally with male and giv- uating the potential of FSOs and its deci-
en the same job opportunities, the Court sion that there was no discrimination
finds that plaintiffs' analysis of the dis- shown in promoting FSOs from class 5 to
parity on potential ratings does not es- class 4. Following the command of Pull-
tablish that the [evaluation reports] of man-Standard v. Swint, 456 U.S. 273,
female FSO's are discriminatory in any 291-92,102 S.Ct 1781, 1791-92, 72 L.Ed.2d
fashion. 66 (1982), we remand the case for further
616 F.Supp. at 1560 (11 25). factfinding where the record permits more
In our view this reasoning puts the cart than one resolution of a factual issue.
before the horse. The District Court can- With respect to the question of whether the
nortH? * t a t i 8 t i c a l evidence was further sup- formance ratings of "6" . received, on average,
Pj>tted by additional statistics demonstrating a h
higher potential ratings than h w
the women who
T)*jP*nty in the potential ratings between men received performance ratings of "6. This dis-
M women who achieved exactly the same per- parity measured 2.55 standard deviations. 616
romance rating. For example, men with per- F.Supp. at 1549 (fl63).
499
State Department discriminatorily under- other promotional levels is sufficient to out-

promoted women from class 5 to class 4 weigh the appellants' evidence, which as
from 1976 to 1983, we cannot say that the we have said includes three distinct ele-
totality of the evidence compels an affirma- ments: the disparity itself measuring 1.76
tive or a negative answer. standard deviations, testimony and doc-
Upon remand the District Court must umented evidence of a general bias against
consider whether, on the basis of the exist- women in the State Department, and the
ing record, the evidence pertaining to the specific evidence as to discriminatory atti-
disparity in potential ratings, together with tudes about the potential of women FSOs
the nonstatistical evidence of a generally for future advancement, revealed in the
hostile attitude against women in the For- evaluation reports of class 5 and 6 FSOs.
eign Service and the statistical evidence of [12] With respect to the evaluation re-
the disparity in class 5 to class 4 pro- ports, we note that the District Court com-
motions, is sufficient proof that, more like- mitted a further error of law. In discuss-
ly than not, the underpromotion of women ing the appellants' statistical analysis of
from class 5 to class 4 was based on dis- the potential ratings for men and women,
crimination. The evidence in the record the court stated that
cutting the other way is the failure of the The methodology utilized by plaintiffs'
appellants' statistical evidence to make out expert ... fails to allow for one vital
even a prima facie case that the State characteristic, that being female FSO's
Department discriminated against women have less time in class than males. This
at other grades of the promotional process. inexperience would account for the lower
Of course, as we have pointed out, appel- potential ratings when compared with
lants need not prove discrimination in these males who have more time in class....
other promotion decisions in order to pre- While the actual performance of males
vail in their disparate treatment claim con- and females may not be reflected by this
cerning promotions from class 5 to class 4. inexperience, a subjective judgment on
Indeed, it is quite plausible that a discrimi- the potential capacity of an FSO may
natory attitude about women and their po- certainly be affected by such inexperi-
tential for further advancement might af-
ence resulting from less time in class.
fect promotions only at a mid-level step
616 F.Supp. at 1549 (11 65).
like the transition from class 5 to class 4.
First of all, as we discussed in Part I. A, There was, in fact, no evidence whatsoev-
supra, the promotions in the junior ranks er introduced at trial on which the District
(classes 7 and 8) were noncompetitive. Sec- Court could rely to base its assumption
ond, the Secretary's own statistical analysis that despite equivalence in actual perform-
showed that fewer women than one would ance officers with less experience would be
expect were actually promoted from class 6 viewed as having lower potential than
to class 5, although his study indicated that those with more experience. See Appel-
this disparity was just as likely to be a lants' Brief at 42. Moreover, the District
random deviation in a nondiscriminatory Court's assumption is counterintuitive: if
system as a symptom of discrimination. officers with less experience managed to
See Defendant's Exhibit 8A, Table 1, Model perform at the same level as officers with
2. Finally, one might surmise that those more experience, one would expect that the
women who survive a discriminatory bias less experienced officers would be seen as
in critical mid-level promotion decisions quick learners with more, not less, poten-
have demonstrated such superior skill and tial. In any event, the District Court was
aptitude that they would encounter less not entitled to rely on mere conjecture to
resistance to advancement in upper level undercut the probative force of appellants'
positions. Despite all these considerations, statistics. See, supra, Part III.C. On re-
the District Court is entitled to determine mand, in deciding whether appellants' evi-
for itself on remand whether the govern- dence concerning the evaluation reports
ment's evidence of nondiscrimination at demonstrated a bias against women, the
500

ClteuSlSFJdM (D.C.CIr. 1987)
District Court shall not rely upon any un- discriminated against women in its deci-
supported hypotheses, such as the relative- sions concerning promotions from class 5
ly lower number of years experience of to class 4 and the issue of whether it dis-
women in grade. criminated in its evaluations of the future
We note further that, even if the rating "potential" of women FSOs.
evidence proves insufficient to prove a dis-
criminatory motive in promotions, appel- B. Assignments
lants are entitled, as a matter of law, to Appellants brought disparate treatment
bring an independent claim of disparate claims with respect to various types of
treatment with respect to the evaluation Foreign Service assignment decisions. We
reports themselves. As we have seen, the consider first appellants' claim that the
Foreign Service Act of 1980 specifically State Department discriminated against
includes any "evaluation" as a "personnel women in "out-of-cone" assignments by ov-
action" that must be free from discrimina- erassigning women to positions in the con-
tion. In light of this express statutory sular cone and by underassigning women
language, we cannot but read the words to the "prestigious" program direction
"all personnel actions" in 42 U.S.C. cone. 616 F.Supp. at 1553-54.
2000e-16 as encompassing such a claim.
Thus, under Title VII, the State Depart-
ment may not discriminate against women 1. Out-of-cone assignments
in their evaluations regardless of any dem- [13] The District Court found that ap-
onstrated effect the evaluations ultimately pellants' evidence disclosed the following
can be shown to have on promotion oppor- facts about out-of-cone assignments to the
tunities. We need not now consider what consular cone:
remedy might be appropriate for discrimi- a) Between 1976 and 1983, 40.4 percent
natory evaluations; the parties bifurcated of all out-oteone assignments received
the issues of liability and remedies. by women in the political cone were to
To recapitulate, insofar as the District consular positions, while only 15.5 per-
Court required appellants to prove discrimi- cent of the out-of-cone assignments re-
nation in promotions in order to prove dis- ceived by men in the political cone were
crimination in evaluation reports, the Dis- to consular positions. This difference
trict Court erred as a matter of law in two [measures 5.84 standard deviations and
significant respects. First, the District therefore the probability of a disparity of
Court unreasonably rejected a major por- this magnitude or greater (either overse-
tion of appellants' evidence that the pro- lecting or underselecting women) result-
motion decisions at issue were infected ing by chance is less than one in one
with a discriminatory motive. Second, the hundred million].16
District Court deprived appellants of their b) For the same time period, the plain-
right under Title VII to bring a disparate tiffs' statistics show 22.9 percent of all
treatment claim as to evaluations, regard- out-of-cone assignments received by
kss of how those evaluations might affect women in the economic cone were to
other employment decisions. Consequent- consular positions, while only 11.6 par-
ly, we remand to the District Court both cent of all out-of-cone assignments re-
*e issue of whether the State Department ceived by men in that cone were to con-
X The
\ ^strict Court actually said. This differ- ty measuring 5.84 standard deviations is much
^ ^ " K t o c e s a standard deviation of 5.84, and smaller than even the District Court indicated.
refo is likely to be the product of chance The one-tailed probability value associated with
in 1 000
' . 0 0 " 6 1 6 FSupp. at a statistic measuring 5.8 standard deviations is
is true that a 3.3157 x 10-, or about 3 in one billion. The
L disP*"** measur-
l standard deviations corresponds to a corresponding two-tailed probability value is
lity lue of less than one in a million, twice that or about 6 in one billion, which is
^ r g one-tailed or a two-tailed test, less than one in one hundred million. See
elk, u lng o f * e standard statistical tables Plaintiffs' Exhibit 168 at 13.
" that the probability of a random dispari-
501
sular positions. This difference mea- appellants had failed to prove sex discrimi-
sures 2.68 standard deviations [which nation in out-of-cone assignments to the
means the probability of women being consular cone. Id. at 1560 (1122).
randomly overassigned or underassigned It is true, as the District Court pointed
to this degree or greater is 0.74 per- out, that assignments are made in part
cent]." pursuant to the bid lists submitted by mem-
c) During the same time period, plain- bers of the Foreign Service. But as the
tiffs' analysis indicated that 50.8 percent District Court acknowledged, bid lists were
of all out-of-cone assignments received only one element of the assignment pro-
by women in the administrative cone cess, and the selection boards based their
were to the consular cone while only 33.2 assignment decisions in larger measure or,
percent of all out-of-cone assignments re- the perceived needs of the bureaus to
ceived by men were to the consular cone.
which the assignments were made. See,
This difference measures 2.62 standard
deviations [which means that the proba- supra, Part LA. Moreover, the Secretary
bility of a disparity of this magniude or submitted no evidence showing that more
greater resulting by chance is 0.88 per- women than men preferred out-of-cone as-
cent].18 signments to the consular cone. Appel-
lants' Brief at 55. The Secretary, on ap-
616 F.Supp. at 1553-54 (H 101). Appellants peal, concedes as much.
contended that these extreme disparities
resulted from the prevalent belief in the The Secretary, however, would have us
Foreign Service that women were espe- affirm the District Court's decision on the
cially suited for consular work. The grounds that "an analysis which ignores
government, in contrast, argued that the 'preference' ... is simply not probative on
disparities resulted from the fact that wom- this issue." Appellee's Brief at 55. This
en on the whole preferred consular assign- argument, however, is precluded by the
ments, and the Foreign Service merely hon- Supreme Court's Bazemore decision. Ac-
ored these preferences. The District Court cording to Bazemore, appellants' statistical
accepted the government's explanation of evidence concerning out-of-cone assign-
the disparities: ments to the consular cone is probative of
The [plaintiffs' statistical] analysis does discrimination despite the fact that it did
not account for the unique feature of the not include individual preferences as a pos-
FSO's bidding, or requesting, their as- sible explanatory factor. There was no
signments pursuant to the Open Assign- basis in the record on which the District
ment Policy. A more accurate analysis Court could assume that women indicated
would measure the requests by the preferences for consular work more fre-
FSO's, as the observations made by quently than men did. Consequently, the
plaintiffs' expert may result as much District Court contravened the dictates of
from the function of requesting different Bazemore by refusing to credit the appel-
assignments as the assignment of FSO's. lants' statistical evidence. Under Baze-
Id. at 1554 (If 101). On this basis, the Dis- more and Segar, the District Court is not
trict Court found appellants' statistical evi- entitled to dismiss plaintiffs' statistical evi-
dence "unconvincing" and concluded that dence on mere conjecture.19
17. The 0.74% probability mentioned in text re- for 2.62 standard deviations is 0.44%. Elemen-
flects a two-tailed approach. The District Court, tary Statistics, supra n. 8, at 479.
again, apparently used a one-tailed approach.
The District Court stated that the (one-tailed) 19. The State Department's approach here is re-
probability was 5 in 1000, or 0.5%, but our markably similar to the defendant's rejected ap-
proach in Bazemore:
reading of the standard tables reveals a slightly
lower one-tailed probability of 0.37%. See Ele- Respondents' strategy at trial was to declare
mentary Statistics, supra n. 8, at 479. simply that many factors go into making up
an individual employee's salary; they made
no attempt that we are aware ofstatistical or
18. Again, the 0.88% probability reflects a two- otherwiseto demonstrate that when these
tailed approach. A one-tailed probability value factors were properly organized and account-
502

Cite as 815 FJd 84 (D.CClr. 1987)
As a result of this legal error, "unless assignments received by women in the con-
the record permits only one resolution of sular cone were to program direction posi-
the factual issue," we must remand the tions." 616 F.Supp. at 1554 (11105b). This
issue of out-of-cone assignments to the Dis- underselection of women measured 2.23
trict Court. Pullman-Standard, 456 U.S. standard deviations, id., which means that
at 292, 102 S.Ct. at 1792. Given the the probability of women being randomly
strength of appellants' statistics on this either underselected or overselected to this
issue, and given the fact that the Secretary degree or greater is about 2.6%.
offered only an unsupported hypothesis to
rebut the inference of discrimination gener- The appellants argued that this underas-
ated by the statistics, we might legitimate- signment of women to program direction
ly conclude that the evidence permits only cone positions from the political and consu-
one answer to the question whether the lar cones resulted from the discriminatory
overassignment of women to the consular belief within the Foreign Service that wom-
cone resulted from an unlawful prejudice en were unsuitable for prestigious leader-
towards women. Nevertheless, because ship-track positions. It is unclear from the
we have already determined that the Dis- District Court's opinion why the District
trict Court must conduct further factfind- Court rejected this argument, and found, to
ing on other issues in this case, and ever the contrary, that the State Department did
mindful of the Supreme Court's injunction not discriminate against women in assign-
that appellate courts not usurp the fact- ments from the political and consular cones
finding function of district courts, we con- to the program direction cone. The Dis-
clude the better course is to allow the Dis- trict Court did observe that "Defendant's
trict Court to reconsider, on the basis of expert produced an analysis indicating that,
the existing record, its determination of as to those men and women who did attain
this issue in light of Bazemore. transfer to the Program Direction cone,
there was no disparity in the amount of
With respect to out-of-cone assignments
to the program direction cone, the District time spent in class before attaining the
Court found that appellants' evidence transfer." 616 F.Supp. at 1554 (1106). Al-
showed that "38.5 percent of all out-of-cone though the District Court found this evi-
assignments received by men in the politi- dence to "indicate[] that females are not
cal cone were to senior program direction discriminated ag&inst in their attainment of
cone positions, while only 14.6 percent of conversion to the Program Direction cone,"
the out-of-cone assignments received by it concluded, accurately, that this evidence
women in the political cone were to pro- could not be "dispositive" because "it mea-
gram direction cone positions." 616 sures the time in class and service of those
F.Supp. at 1554 (U 105a). The District who actually attain the Program Direction
Court further found that this underselec- cone, and plaintiffs complain of a disparity
tion of women measured 4.46 standard de- in the number of men and women who are
viations, id., which means that either an given out-of-cone assignments to positions
underselection or an overselection of wom- which carry the program direction skill
en of this magnitude or larger has a proba- code and would thus qualify them for
bility of occurring randomly in less than transfer to the Program Direction cone it-
one in 100,000 times. self." Id. (H107). The issue was not
Appellants' evidence also demonstrated whether those women who were able to
that "12.4 percent of the out-of-cone as- transfer to the program direction cone did
signments received by men in the consular so with the same speed as their male coun-
cone were to program direction positions, terparts; rather, the issue was whether
while only 6.6 percent of the out-of-cone proportionally fewer women than men
ed for there was no significant disparity be- that preference would explain the disparities re-
tween the salaries of blacks and whites. lated to sex.
106 S.Ct. at 3010-11 n. 14. Similarly, here the
** Dwpaifii nt Defeated no evidence at all
503
were able to transfer to program direction sures 6.72 standard deviations, id., and the
positions at all. chances of women being randomly overas-
Despite the District Court's concession signed or underassigned to this degree or
that appellee's rebuttal evidence could not greater is less than one in ten billion. See
be "dispositive," it offered no other basis D.B. Owens, Handbook of Statistical Ta-
for rejecting appellants' claim of discrimi- bles 13 (1962) (Plaintiffs' Exhibit 168).
nation in out-of-cone assignments to the Second, "20.8% of the women in Class 5
program direction cone positions. Specifi- received down-stretch assignments, while
cally, it did not mention individual prefer- only 14.2% of the men received them. This
ence as a possible nondiscriminatory expla- difference measures 4.04 standard devia-
nation for the disparity between men and tions." 616 F.Supp. at 1552-53 (1192). The
women in their selection rates for these probability of a random overselection or
positions, probably because there was abso- underselection of women of this magnitude
lutely no evidence in the record indicating or larger is about 1 in 20,000. See Plain-
that women preferred assignment to the tiffs' Exhibit 168 at 13.
"prestigious" program direction cone less Third, 19.9% of the women in class 7
than men. received down-stretch assignments, where-
Thus, we conclude that the District Court as only 14.3% of the men in class 7 did.
failed to articulate any sufficient grounds This disparity measured 2.39 standard devi-
for rejecting appellants' proof of discrimi- ations, which corresponds to a (two-tailed)
nation in out-of-cone assignments to the probability value of about 1.6%. See Plain-
program direction cone. The sole basis tiffs' Exhibit 57; Elementary Statistics,
offered by the government was properly supra n. 8, at 479.
found by the court to be insufficient. It Fourth, with respect to stretch assign-
cited no other basis in the record for its ments, only 19.1% of women in class 4
decision, and we can find none. Therefore, received stretches, whereas 28.4% of the
we reverse and remand the issue for recon- men in class 4 did. This underselection of
sideration, on the basis of the existing women measured 3.74 standard deviations,
record. The inference of discrimination which means that the probability of either
raised by the significant disparities be- an underselection or overselection of wom-
tween men and women given out-of-cone en of this magnitude or larger resulting
assignments to these "prestigious" posi- from chance is about one in 5,000. See
tions is thus far unrebutted. Unless the Plaintiffs' Exhibits 57, 168.
District Court can find valid basis sup- Fifth, only 31.6% of women in class 5
ported in the record for rejecting the infer- received stretch assignments, whereas
ence of discrimination, it must rule in favor 37.7% of the men in class 5 did. This
of the appellants on this claim. disparity measured 2.79 standard devia-
tions, which corresponds to a (two-tailed)
2. Stretch and Downstretch Assign- probability value of 0.52%. See Plaintiffs'
ments Exhibit 57; Elementary Statistics, supra,
The appellants also claim that the State n. 8, at 479.
Department discriminated against women The appellants argued that this overas-
in "stretch" and "down-stretch" assign- signment of women to downstretch posi-
ments. The evidence that appellants intro- tions and underassignment of women to
duced at trial in support of this claim in- stretch positions resulted from unlawful
cluded the following statistics. First, be- sexist attitudes in the Foreign Service. As
tween 1976 and 1981, "32.2% of the women additional evidence to support their conten-
in Class 4 were given downstretch assign- tion, the appellants pointed to a 1977 report
ments, while only 17.6% of the men in that prepared within the State Department,
class were given down-stretch assign- which stated that stretch assignments "are
ments." 616 F.Supp. at 1552 (II92). As not commonly given to those in EEO cate-
the District Court noted, this disparity mea- gories," meaning women and minorities.
504
PALMER v. SHULTZ Iff

Cite a* 815 F.M84 (D.CCIr. 1987)
Plaintiffs' Exhibit 29 at 6. The District men and women in class 5 for those assign-
Court nonetheless rejected the appellants' ments that are stretches for officers in
claim, offering several reasons for its deci- class 5. Appellants are not interested in
sion. These reasons, however, do not sup- comparing how well the men and women in
port the District Court's decision. All but class 5 compete against officers in another
one are erroneous as a matter of law, and class. They are only interested, and prop-
the other is a clearly erroneous finding of erly so, in how similarly situated men and
fact women compete against each other.
[14] First, the District Court stated It was an error of law for the District
that appellants had failed to show that the Court to reject the probative value of ap-
overassignment of women to downstretch pellants' statistical evidence because of this
positions and underassignment of women irrelevant factor of "cross-class* competi-
to stretch positions adversely affected the tion." Certainly, the Supreme Court's deci-
opportunities of these women for pro- sion in Bazemore stands for the proposi-
motion. See 616 F.Supp. at 1553 (1194). tion that the "missing factor" identified by
Once again, we repeat that appellants are the District Court as a reason for discount-
entitled under 42 U.S.C. 2000e-16 to ing statistical proof of disparate treatment
bring a claim of sex discrimination with must at least be relevant to the point of the
respect to "all personnel actions," including statistics. In Bazemore itself, the Su-
any category of assignments, regardless of preme Court noted that "certain conclu-
how these assignments relate to other per- sions of the District Court are inexplicable
sonnel actions, like promotion decisions. in light of the record." 106 S.Ct. 3011 n.
By relying on this determination, the Dis- 15. For instance,
trict Court contravened the express provi- the District Court complained about the
sions of Title VII. inclusion of the County Chairman in the
Second, the District Court concluded that petitioners' regression analysis, fearing
appellants' statistical evidence was "of lit- that the fact that they were dispropor-
tle value in persuading that discrimination tionately white would skew the salary
existed in assigning stretch and down- statistics to show whites earning more
stretches" because, in part: than blacks. Yet, because the regres-
Plaintiffs' expert, by analyzing the situa- sions controlled for job title, adding
tion class by class, appears to ignore County Chairman as a variable in the
cross-class competition for any given as- regression would simply mean that the
signment. For example, an officer vying salaries of white County Chairmen would
for a Class 4 stretch position may com- be compared with those of nonwhite
pete against officers from at least County Chairmen.
Classes 6, 5, 4, and 3. Id. In this case, the District Court's re-
616 F.Supp. at 1553 (till 96, 98). liance on the omission of "cross-class com-
While it is absolutely true that officers in petition" as a basis for rejecting appellants'
*ny given class will be competing against evidence of discrimination in stretch and
officers from other classes, it is also abso- downstretch assignments is similarly "inex-
lutely irrelevant to the point of appellants' plicable."
evidence. Appellants are trying to demon- [15] Third, the District Court found ap-
strate, for example, that women in class 5 pellants' statistics concerning stretch and
^"e less likely than men in class 5 to downstretches to be "flawed" in another
stretch into assignments labelled class 4 or respect. The data from which the statisti-
higher, and that this disparity results from cal analysis was made was tabulated in
a widespread prejudice within the Foreign terms of the total number of years each
service that women are less able than men FSO served in a stretch or a downstretch
despite their equivalent rank. Given this assignment rather than in terms of the
Purpose, it is entirely irrelevant that offi- number of such assignments. The District
** from other classes may compete with Court found that this methodology "does
505
not accurately reflect the number of as- preferencerathe* than a discriminatory

signments given out by the Foreign Ser- treatment of womenbest explained the
vice." 616 RSupp. at 1553 (1195). The disparities in out-of-cone assignments.
appellants contend, however, that the data Here, in contrast, there is some evidence
they used were the only available data, and that women preferred downstretch assign-
the Secretary does not dispute this conten- ments more than men did. As the District
tion. See Appellants' Brief at 49; Appel- Court states, the record contains "testimo-
lee's Brief at 53. Moreover, the Secretary ny that down-stretch assignments are re-
has introduced no evidence tending to show quested for various reasons, including the
that the imperfections of the data caused desire to gain an assignment with a spouse
the disparities produced by the statistical who is also a State Department employee."
analysis. See Appellants' Brief at 50. Id. If this testimony were indeed "exten-
Thus, the government once again relies on sive," as the District Court characterized it,
mere conjecture to rebut appellants' statis-
we would conclude that the District Court's
tics. Finally, and perhaps most important,
decision that the State Department did not
the appellants received their data from the
State Department's employment records, discriminate in stretch and downstretches
and the reason why the data were tabulat- was not clearly erroneous. But we can
ed in terms of number-of-years rather than find in the record only two instances in
number-of-assignments was that the State which a woman FSO subordinated her own
Department's employment records were career in favor of her husband's Foreign
tabulated in this form. Id. In these cir- Service careerand in one of these instanc-
cumstances, as this court has previously es, the witness testified that her decision in
stated, "plaintiffs cannot be legitimately this instance was part of an alternating
practice she and her husband agreed to of
faulted for gaps in their statistical analysis
when the information necessary to close trading-off less desirable assignments.
those gaps was possessed only by defend- Compare Appellee's Brief at 53-54 n. 58
a n t ]." Trout v. Lehman, 702 F.2d 1094, with Tr. 876, 1765, 2150. These two (or
1102 (D.C.Cir.1983) (quoting 517 F.Supp. more accurately, one and a half) isolated
873, 888 (D.C.1981)), vacated on other instances do not amount to "extensive" tes-
grounds, 465 U.S. 1056, 104 S.Ct 1404, 79 timony. Alone they do not establish a suf-
L.Ed.2d 732 (1984); see also Segar, 738 ficient basis for undermining the probative
F.2d at 1276 ("Both the policies underlying weight of appellants' statistics. We must
Title VII and general principles of evidence recall that some of the disparities between
suggest that the burden of production of men and women in downstretch assign-
such evidence must rest with the defend- ments were especially extreme, measuring
ant"). Therefore, insofar as the District 6.72 and 4.04 standard deviations. Given
Court relied on this reason to reject the these kinds of numbers, it takes more than
probative value of appellants' statistics, wea few isolated examples of individual deci-
find its decision in conflict with the prece-sions by women to seek downstretches for
dents of this circuit the District Court not to conclude, that
[16] Finally, the District Court found more likely than not, the disparities result-
that "Plaintiffs' analysis did not allow for ed from unlawful discrimination. There-
the preference of the individual FSO." 616 fore, from our review of the totality of the
RSupp. at 1553 (H 97). The District Court's evidence presented on the issue of discrimi-
reliance on this "preference" argument in nation in stretch and downstretch assign-
the context of stretch and downstretch as- ments, we must conclude that the District
signments differs significantly from its Court's finding of no discrimination was
role in the context of out-of-cone assign- clearly erroneous. We reverse the District
ments. To recall, the District Court had no Court's decision on this issue of' liability
evidence for believing that women more
than men would prefer out-of-cone assign- and remand for appropriate proceedings on
ments to the consular cone and that this the question of remedies.
506
PALMER v, SHULTZ
Cite as 815 FJd 84 (D.CCIr. 1987)
3. Deputy Chief of Mission Assign- ever, also said that evidence of nondiscrimi-
ments nation in some jobs may be probative of
[17] Appellants also claim that the whether discrimination occurred in selec-
State Department discriminated against tions for another kind of job. Adherence
women in selecting Deputy Chiefs of Mis- to both these legal rules may be difficult at
sion. The Deputy Chief of Mission (DCM) times. But in this case it is clear that the
is the second in command, directly below District Court contravened the first of
the Ambassador, at each American embas- these two legal rules. Here, appellants
sy. As the District Court found, appellants introduced evidence showing that the un-
introduced evidence showing that only derselection of women for DCM positions
"nine women were appointed DCM between was so extreme that the chance of women
1972 and 1988, out of a total of 586 appoint- being randomly underselected or overse-
ments." 616 F.Supp. at 1552 (H 88). The lected to this degree or greater was only
District Court then noted: one in 2,500 times. Not even a stipulation
Plaintiffs' expert calculated that the ex- that the State Department did not discrimi-
pected number of women appointed dur- nate against women in assignments to five
ing that period, based on the number of other kinds of "high visibility" positions
women in the grade levels from which could defeat the inference of disparate
DCM's were chosen, is 26.8. The differ- treatment raised by this evidence. A de-
ence between the actual and expected fendant must produce other evidence di-
number of women measures 3.54 stan- rectly relating to the job at issue to rebut
dard deviations. this inference of discrimination. In this
case, the District Court rejected appellants'
Id. The probability of a disparity this strong inference of disparate treatment in
large or larger, either favoring or disfavor- part because appellants did not generate an
ing women for the DCM position, resulting inference of discrimination in five other
by chance in a selection process that did types of assignments. This was legal er-
not differentiate between men and women, ror.
is about one in 2,500 times. Given this
extremely low probability, this evidence, Second, the District Court stated:
standing alone, raises a strong inference of Plaintiffs' analysis of the number of
disparate treatment. women . . . in DCM positions failed to
The District Court offered several rea- adequately consider the bottom-entry na-
sons for concluding that the State Depart- ture of the Foreign Service. It failed to
ment did not discriminate against women in allow for the time necessary for the
DCM assignments. All of these reasons large number of female FSO's presently
are erroneous as a matter of law. First, in .the service to advance to the higher
the District Court found this evidence "un- ranks.
convincing" because appellants were un- 616 F.Supp. at 1560 (U 19). It is not clear
able to show "statistically significant dis- what the District Court meant by this
parities]" in the selection rates for five statement. As we have seen, the District
other "high visibility positions." 616 Court elsewhere acknowledged that appel-
F.Supp. at 1560 (11 20). (The other "high lants' statistical analysis was "based on the
visibility" positions were: Deputy Assist- number of women in the grade levels from
ant Secretary, Office Director, Country Di- which DCM's were chosen." Id. at 1552
rector, Principal Officer, and Executive Di- (1188). Thus, according to the District
rector.) Court itself, the appellants properly limited
Once more, we remind that under 42 their study to the relevant applicant pool
U.S.C. 2000e-16 appellants are not re- and therefore controlled for the fact not
quired to prove sex discrimination in as- many women in the Foreign Service had
signments to six different types of jobs in reached a position in which they were eligi-
order to establish discrimination in assign- ble for appointment as Deputy Chief of
ments to a single position. We have, how- Mission. What else, then, could the Dis-
507
trict Court have meant by saying that ap- sion in appellants' study certainly cannot
pellants "failed to allow for the time neces- render the entire study of "little signifi-
sary for the large number of female FSO's cance." See Rossini v. Olgivy & Mather,
presently in the Service to advance to the Inc., 798 F.2d 590, 604 n. 5 (2d Cir.1986).
higher ranks"? We can only surmise that Moreover, in this case, the State Depart-
the District Court meant that when more ment does not contend that reviewing the
women reached these higher ranks, more data from 1972-1976 would reveal dispari-
women would be appointed to DCM posi- ties of a different magnitude. See Appel-
tions.- But even if that is what the District lants' Brief at 57; Appellee's Brief at 58 n.
Court meant, then it once again committed 68.
legal error. The fact that in absolute num-
bers, more women will be appointed to Thus, the three reasons the District
DCM positions is irrelevant to the present Court gave for rejecting appellants' strong
discrimination claim at issue. Appellants inference of disparate treatment in DCM
claim that even^fter accounting for the assignments are inadequate as a matter of
small number of women eligible for selec- law. On appeal, the Secretary suggests an
tion to a DCM position, women have been alternative nondiscriminatory explanation
proportionally underselected when com- for the underselection of women to this
pared to the number of eligible men select- position: more women might have been
ed and that this underselection has no legit- appointed Ambassador instead. Appellee's
imate, nondiscriminatory explanation. Ap- Brief at 57. We note that the District
pellants are entitled to a consideration of Court made no such finding and the only
this claim regardless of whether the reason evidence in the record to which the Secre-
for the currently small number of eligible tary directs us is a statement by a single
women is the "bottom-entry nature of the witness that perhaps this fact might ex-
Foreign Service." It seems as if the Dis- plain the underselection of women for DCM
trict Court lost sight of the relevant legal positions. Tr. at 1766. We think that the
question under Title VII, and the issue proper course under Pullman-Standard is
must be remanded for reconsideration in to remand the issue to the District Court
accordance with a proper conception of the for further factfinding, on the basis of the
law. existing record.
Third, the District Court found that
"[plaintiffs'] statistical analysis is of little C. The Superior Honor Award
significance in that it encompasses the peri- [18] The appellants also claim that the
od 1972 through 1983, while the relevant State Department discriminated against
time period for this case is 1976 to 1983." women in granting the Superior Honor
616 F.Supp. at 1552 (U 89). This determina-
Award to Foreign Service Officers. As the
tion is directly contrary to the precise hold-
ing of the Bazemore decision. As dis- District Court found, appellants presented
cussed in Part III. B., the Supreme Court the following evidence:
found that the inclusion of pre-Act data in 4.8% of the award recipients were fe-
a statistical study did not undercut the males, although 10.1% of the Class 1
probative value of that study.20 Previous- through 5 FSO's during the time period
ly, the Supreme Court has held that evi- were females. These results indicate
dence of discrimination by the defendant that twice as many women would be
for years that are time-barred is equivalent expected to receive the Superior Honor
to evidence of pre-Act discrimination. Un- Award as actually received it. The dif-
ited States v. Evans, 431 U.S. 553, 558, 97 ference measures 3.1 standard devia-
S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). In tions.
this case, evidence of discrimination from 616 F.Supp. at 1548 (1148). The chances
the years 1972-1976 is not directly action- are only one in 500 that a deviation of this
able because it is time-barred, but its inclu- magnitude or larger, either favoring or dis-
20. On the contrary, the Supreme Court found this evidence "quite probative."
508
PALMER v,. SHULTZ J13

Cite as 815 F.M 84 (D.C. Cir. 1987)
favoring women, would occur randomly if cause, in the court's own words, appellants
the process of granting Superior Honor made "no showing ... of what portion of
Awards treated men and women equally. female FSO's were qualified for the Superi-
Elementary Statistics, supra n. 8, at 481. or Honor Award." Id. But the statement
Once again, the reasons that the District reveals a fundamental misunderstanding of
Court gave for rejecting appellants' dis- the role of relevant statistical evidence in a
crimination claim are contrary to law. Title VII case. Appellants do not suggest
First, the District Court stated that appel- that one FSO is as equally qualified to
lants failed to show how "the failure of receive an award as another. These
women to receive the Superior Honor awards are obviously based on merit and
Award affected the opportunity for pro- are supposed to be given to only the out-
motion." Id. (H 49). Appellants, however, standing FSOs. Appellants merely assume
are entitled to bring a sex discrimination that the ranks of men and women FSOs
claim under 42 U.S.C. 2000e-16 with re- would produce these outstanding individu-
spect to personnel decisions involving als at (roughly) equal rates, and the State
awards regardless of how these decisions Department offered no reason for rejecting
affect promotions. As we have seen, the this assumption. Appellants' statistical
Foreign Service Act of 1980 specifically analysis is based on the contention that if
includes "any ... award of performance the State Department awarded this prize
pay or special differential" as among the without bias against women, the percent-
personnel actions that must be free from age of eligible women receiving the award
sex discrimination, and we do not construe would be the same as the percentage of
"all personnel actions" in 42 U.S.C. eligible men receiving the award (and thus
2000e-16 to have a lesser scope. the male/female ratio among award recipi-
ents would be the same as the male/female
Second, the District Court rejected appel- ratio in the pool of eligible candidates).
lants' claim involving the Superior Honor Appellants properly limited their analysis
Award as "unconvincing" because the ap- to only FSOs in classes 1 through 5, be-
pellants were unable to produce equivalent cause only FSOs in those classes received
evidence with respect to other State De- this award. Given that appellants limited
partment Honor Awards. But as with the their statistical analysis to the relevant
evidence concerning the DCM assignments, pool, and the analysis revealed an underse-
appellants' evidence concerning the Superi- lection of women measuring 3.1 standard
or Honor Award is sufficiently strong to deviations, the inference of disparate treat-
withstand even a stipulation that the State ment generated by this evidence is entitled
Department did not discriminate against to stand unless and until the government
women in granting other types of Honor presents a credible nondiscriminatory ex-
Awards. To rebut the inference of discrim- planation of why men in classes 1 through
ination here, the State Department was 5 more frequently received the Superior
required to present evidence explaining the Honor Award than women in the same
extreme disparity between the numbers of classes. See, supra, n. 6. By stating that
men and women receiving the Superior appellants had established no basis for
Honor Award. comparing actual awards with expected
Third, the District Court discredited ap- awards, and in believing that appellants
pellants' evidence because the District assumed all female FSOs equally qualified
Court thought that appellants' statistical for the award, the District Court revealed
"analysis was based on a faulty assump- failure to understand the way in which
tion that all female FSO's were equally statistics can prove discrimination in a Title
qualified for the Superior Honor Award." VII case. Therefore, we reverse for legal
616 RSupp. at 1548 (IF 50). But appellants' error.
evidence assumes nothing of the sort The Moreover, because the State Department
District Court apparently thought that ap- did not offer any explanation for the dis-
pellants made this "faulty assumption" be- parity between men and women in receiv-
509
114 815 FEDERAL REPORTER. 2d SERIES
ing the Superior Honor Award, we must the appellants can pursue both a disparate
order the District Court to uphold appel- treatment and a disparate impact claim
lants' claim of discrimination on this issue. with respect to the exam-taker's initial
We need not address what kind of remedy cone assignments. We will explain our
might be appropriate, as only issues of reasons for this conclusion.
liability are properly before the court at To apply the disparate treatment theory
this time. to the evidence concerning exam-takers,
the appellants must allege and prove that
V. INITIAL COKE ASSIGNMENTS: THE CLAIM the observed, nonrandom disparities were
INVOLVING THE DISPARATE IMPACT THEORY caused by intentional discrimination
Appellants characterize their claim con- against women. To apply the disparate
cerning initial cone assignments as both a impact theory, the appellant must allege
disparate treatment and a disparate impact and prove that the disparities were caused
claim. This characterization, unfortunate- by a "facially neutral" selection criterion
ly, lacks a certain degree of clarity and that disadvantaged women more than men.
may indicate some confusion on the appel- Here, the appellants point to the political
lants' part Perhaps this confusion stems functional field portion of the Foreign Ser-
from the fact that the initial cone assign- vice Entrance Examinations. They have
ments involve two distinct groups of FSOs: introduced evidence that from 1975 to 1980
those that took entrance exams and those men received higher scores than women on
that did not See, supra, Part I & n. 2. It this test and that statistical analysis rejects
appears that appellants wish to bring a the hypothesis that this disparity was a
disparate treatment claim on behalf of random sample of the deviation that would
both these groups and a disparate impact normally occur if men and women tested
claim on behalf of the exam-takers. The equally. See 616 F.Supp. at 1546 (1127).
appellants introduced statistical evidence of [19] Of course, the appellants might
a disparity in initial cone assignments for have presented alternative claims: e.g., the
which the pool was both the exam-takers duparity in initial cone assignments was
and the nonexam-takers. Appellants' Brief caused either by discriminatory intent or
at 22. This study was based on data sup- by the results of the entrance examina-
plied by the State Department Id. The tions. Nothing in Title VII or the Federal
appellants also introduced statistical evi- Rules of Civil Procedure prevents appel-
dence of a disparity in the initial cone as- lants from pursuing alternative claims or
signments for the exam-takers alone. Id. theories, even if they are mutually incon-
at 24. This study, by contrast was based sistent11 But in this case appellants seem
on data supplied by the Educational Test- to argue only that the results of the en-
ing Service (ETS) which administers the trance examinations caused the disparity in
Foreign Service entrance exams and moni- initial cone assignments; they make no ex-
tored the test results. Id. (The appellants plicit charge of discriminatory intent In-
apparently did not introduce any evidence deed, appellants introduced an additional
regarding the nonexam-takers alone.) We regression analysis study (also based on
do not believe, however, that in this ease the ETS data) which showed that the test
21. We have no occasion to rule today that with neutral, although disadvantageous, selection cri-
respect to a particular disparity (like initial cone terion simultaneously caused a particular dis-
assignments) a disparate treatment claim and a parity, each contributing to the end result. For-
disparate impact claim are mutually inconsist- tunately, we need not decide any of these com-
ent As this court has previously recognized, a plex questions about partial causality, since ap-
disparate treatment claim can turn into a dis- pellants themselves state that after accounting
parate impact claim if a defendant rebuts an for the difference between men and women in
allegation of discriminatory intent by claiming their test scores, there is no statistically signifi-
that a facially neutral selection criterion caused cant disparity between men and women in their
a disparity in selections. See Segar, 738 F.2d at initial cone assignments. See Plaintiffs' Post-
1270. Indeed, it may even be possible to claim
Trial Brief at 22; infra, n. 22.
that both discriminatory intent and a facially
510
PALMER v. SHULTZ
Cite as 815 FM 84 (D.C.Cir. 1987)
scores were the one and only factor that Plaintiffs' analysis of exam takers is
explained the disparity in initial cone as- flawed and inconclusive in establishing
signments.22 At trial, appellants' expert disparate impact in cone assignments. It
witness, who had conducted the statistical was established that the expert's deter-
study, testified that with respect to "the mination of total FSO hires for the year
exam takers, the reason you see this pat- 1981 was incorrect. Plaintiffs' expert at
tern [of disparity in initial cone assign- times had difficulty identifying the cone
ments] is because of their test scores." Tr. at hire of the FSO's and chose to delete
at 3402. The appellants argued to the Dis- those officers from the analysis, along
trict Court that this evidence demonstrates with any FSO's not assigned to the four
that "[tjhe adverse impact of the functional major cones. Though the expert dis-
field test causes the disparities in cone claimed the significance of those actions,
assignment observed by Dr. Siskin [the ex- the Court is not persuaded.
pert witness] [TJest scores on the
functional field test were determinative of Id. at 1546 (11 29). Unfortunately, this find-
cone assignments." Plaintiffs' Post-Trial ing of fact is itself flawed. Although the
Brief at 33. They repeat this argument on District Court is correct in saying that
appeal. Appellants' Brief at 35. Because there was some confusion about the correct
appellants have specifically identified the data for 1981 in some of appellants' statis-
examinations, and not intent, as causing tics, this confusion did not involve the
the disparity in initial cone assignments of specific statistical studies relevant to the
the exam-takers, we will treat their claim disparate impact claim involving the en-
concerning this disparity as relying solely trance examination: the data which were
on the disparate impact theory.23 supplied by ETS. There was no dispute
Once over that initial hurdle, the resolu- about the accuracy of this data. The con-
tion of appellants' disparate impact claim fusion over the 1981 numbers arises from
seems straightforward. The only basis data supplied by the State Department's
which the District Court gave for rejecting employment records. The State Depart-
appellants' statistical evidence that corre- ment data were used in appellants' statisti-
lated test scores with initial cone assign- cal studies involving both exam-takers and
ments was that these statistics were nonexam-takers and this evidence was un-
"flawed and inconclusive." 616 F.Supp. at necessary for the disparate impact claim
1561 (U 28). involving exam-takers only.24
** This study considered the effect of the fol- that they can maintain a disparate treatment
owing variables on initial cone assignments: claim simply by demonstrating a disparity in
level of educational attainment, major field of initial cone assignments. See, e.g., Appellants'
udy, functional test scores, and sex. See 616 Brief at 22. But, as discussed in text, a dispar-
F.Supp. at 1546 (H 28). The study found that ate treatment claim must prove both a disparity
neither level of educational attainment nor ma- and discriminatory intenteven if proof of in-
jor field of study explained disparities in initial tent is circumstantial and the disparity itself
cone assignments, and that when controlling for raises an inference of intent. See, e.g., Team-
functional test scores, women were not underas- sters, 431 U.S. at 335 n, 15, 97 S.Ct. at 1854 n. 15.
signed to the political cone or overassigned to
j cot ular cone to a statistically significant 24. Because we have concluded that appellants
degree. See Tr. at 1076-82. have properly presented only a disparate i/npact
claim regarding the initial cone assignments of
Appellants' confusion over the difference be- the exam-takers, the only remaining disparate
a disparate treatment and a disparate treatment claim involves the initial cone assign-
Pa claim is illustrated by the following as- ments of those who did not take the entrance
T in their brief: "[Plaintiffs' expert] found examinations. As we have mentioned, however,
exnl SCOres subst antially correlate with or the appellants presented no independent statisti-
b J 0 0 ê ^ ' g n m e n t s . . . . Thus, there can cal evidence to show that the State Department
doubt
that plaintiffs have established a intentionally discriminated against women in
^tfeatment [claim] in cone assign- this group of nonexam-takers. The data which
Plaintiffs' Post-TriaJ Brief at 22. As included this group also included the exam-tak-
in text, this evidence supports a dis- ers, but as any study based on this data is
impact, and hot a disparate treatment. drastically overinclusive with respect to the no-
Appellants at times, incorrectly, suggest nexam-takers, we do not believe this evidence
511
[20] Because the ETS data on which the Notably, the one obvious defense that
disparate impact claim relies do not in- the State Department never raised was
clude the "flaw" referred to by the District that there was a legitimate "business" ne-
Court, this finding of fact must be reversed cessity for the test. Indeed, the District
as clearly erroneous. Indeed, the State Court specifically found that "[defendant
Department makes no attempt to support did not rely on a showing that the political
this finding of fact Instead, the State functional field test was job related." 616
Department suggests that preference, and F.Supp. at 1546 (II 31). Thus, if the District
not the results from the functional field Court concludes that the examination
portions of the entrance examinations, ex- caused the disparity in initial cone assign-
plains the disparity in the initial cone as- ments, the District Court must conclude
signments of male and female exam-takers. that the test violated Title VII. See, e.g.,
It is not at all clear from the opinion that Albemarle Paper Co. v. Moody, 422 U.S.
the District Court adopted this argument. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).M
The District Court refers to the existence Consequently, we reverse the decision of
of a study that the State Department intro- the District Court and remand for the ap-
duced in support of this argument, but propriate factfinding.
makes no evaluation of the study. 616
F.Supp. at 1546 (If 30). We think it appro- CONCLUSION
priate that the District Court, rather than We have reviewed the District Court's
an appellate court, evaluate this evidence in decision in this case in detail and have
the first instance. We note that the concluded that it committed a number of
government's study involves only the years legal errors and made several clearly erro-
1973 and 1974, when exam-takers were neous errors of fact. Consequently, we
tested in only one functional field and were reverse the judgment of the District Court
allowed to select the field in which they and remand this action for further proceed-
wished to be tested.25 But we are not ings not inconsistent with this opinion.
prepared to say that the results of that With respect to a number of the appellants'
study, whatever they might be, are entirely claims, we have held that the determination
irrelevant for the years 1975 and after, of liability under Title VII requires further
when all exam-takers were tested in all factfinding by the District Court, to be
four functional fields. Apparently, prefer- conducted on the basis of the existing
ence played some role in initial cone assign- record. See C. Wright & A. Miller, Feder-
ments for some FSOs in the period after al Practice and Procedure 2577 (1971).
1975. See 616 F.Supp. at 1545 (H 16). On We offer no views at this point on any
remand, therefore, the District Court must issues relating to the remedies phase of
determine whether, on the basis of the this litigation.
existing record, the apparent disparity in
initial cone assignments for the exam-tak- It is 80 ordered.
ers was, more likely than not, caused by
the disparity in test scores for male and O | KCYHUMBK SYSTEM^
female FSOsor, as the State Department
contends, by different assignment prefer-
ences between male and female FSOs.
can create even a prima facie case of discrimi- took the examinations between 1975 and 1980
nation. Consequently, we affirm the District and were subsequently hired between 1976 and
Court's decision insofar as appellants failed to 1983. Apparently, there was not sufficient data
prove disparate treatment in the initial cone from those who took the entrance examinations
assignments of the nonexam-taker group. after 1980 and who were thereafter hired in the
relevant time period, for a meaningful statistical
25. See, supra, n. 1. analysis to be conducted about the effect of
these examinations. Therefore, the determina-
26. We note, however, that the statistical analysis tion of liability under the disparate impact theo-
on which the appellants' disparate impact claim ry can extend only to those who took the exami-
was based covered only those applicants who nations between 1975 and 1980.
512
LAFFEY v. NORTHWEST AIRLINES, INC. 1071

Cite a 740 F.2d'.071 (1984)
public procedure); Small Refiner Lead
Phase-Down Task Force, 705 F.2d at 554; Mary Pat LAFFEY, et al.,
American Federation of Government
Employees v. Block, 655 F.2d 1153, 1156
NORTHWEST AIRLINES, INC.,
(D.C.Cir.1981). Such rules of course must
Appellant,
avoid the problems we have identified in
this opinion of large carriers abusing their Air Line Pilots Association, Non-Aligned
power over small carrier co-participants in Party. (Two Cases)
through routes. ILGWU v. Donovan, 733
F.2d 920 at 922 (D.C.Cir.1984) (court's "un- Mary Pat LAFFEY, et al., Appellants,
ambiguous mandate [may not be] blatantly
disregarded by [agency issuing interim
NORTHWEST AIRLINES, INC.,
emergency orders] "). Other than this limi-
tation, it is for the Commission, and not Air Line Pilots Association, Non-Aligned
this court, to decide if interim rules are Party. (Two Cases)
needed and if so what those rules should
Nos. 83-1033, 83-1034, 83-1167
provide. Small Refiner Lead Phase-Down and 83-1168.
Task Force, 705 F.2d at 554; cf. Action on
Smoking and Health v. Civil Aeronautics United States Court of Appeals,
Board, 713 F.2d 795, 800 (D.C.Cir.1983) District of Columbia Circuit.
(promulgation of order without notice and Argued Dec. 8, 1983.
comment procedures under 5 U.S.C.
553(b)(B) is proper only if the agency Decided July 20, 1984.
concludes there is an "emergency situation
... [where] delay would do real harm").
In Title VII and Equal Pay Act case, in
We have also concluded that the ICC car which an airline was found to have violated
hire decision was a promulgation of a sub- the latter Act by paying its stewardesses
stantive rule, and not an exemption autho- less than its pursers, the United States
rized by 49 U.S.C. 10505(a) and therefore District Court for the District of Columbia,
must be vacated. In addition, we find that Aubrey E. Robinson, Jr., Chief Judge, 582
the ICC relied on an improper view of its F.Supp. 280, resolved disputed matters.
role in assuring that the Alaska Railroad's Appeal and cross appeal were taken. The
rates be "equal and uniform" and therefore Court of Appeals held that: (1) there was
vacate and remand for further considera- no basis for overturning the determination
tion the rate exemption as applied to the that the airline's purser/stewardess pay
Alaska Railroad. We find unpersuasive, differential was based on sex or that a
however, petitioners' arguments that the uniform cleaning allowance for men, but
general maximum rate exemption must be not for women, discriminated impermissi-
vacated as applied to Canadian-United bly on the basis of sex; (2) in view of the
States boxcar traffic, or that the valid por- full and fair opportunity the airline had to
tions of the order will allow undue discrimi- litigate the issues of whether stewardesses
and pursers performed "equal work," the
nation against ports. Finally, we have con-
measurement of back pay, oversights in
sidered other arguments raised by the par-
the delineation of the Title VII class, and
ties, not explicitly addressed in this opinion, error in characterizing the Equal Pay Act
and find them without merit. For the rea- violations as willful, the strong policy of
sons set forth above, this case is remanded repose precluded reconsideration; (3) the
to the Commission for proceedings consist- time frame for back pay accrual was Min-.
ent with this opinion. nesota's two-year limitation on the recov-
It is so ordered. ery of wages under any federal or state
513
law; (4) the stewardesses were entitled to does not fall within what Congress envi-
pre-Act longevity in calculating back pay sioned as bona fide "other factor." Fair
for the relevant, post-Act time periods; (5) Labor Standards Act of 1938, 6(d), as
the district court properly declined to revi- amended, 29 U.S.C.A. 206(d).
sit the 1974 remedial order provision on the
rate of prejudgment interest; and (6) stew- 4. Labor Relations =1333
ardesses were entitled to postjudgment in- Airline discriminated on basis of sex by
terest on. the liquidated damages. providing male-only uniform cleaning al-
lowance for cabin attendants and there was
Affirmed in part, reversed in part and
no need to consider average monetary val-
remanded with instructions.
ue of overall benefit package in question to
male and female employees because clean-
1. Labor Relations =1333 ing allowance was simply another supple-
Employer's actual but erroneous belief ment to male salaries. Fair Labor Stan-
that two jobs are in fact different does not dards Act of 1938, 6(d), as amended, 29
wholly shelter employer from equal pay for U.S.C.A. 206<d).
equal work liability in that judges have
discretion only to limit, not to eliminate, 5. Federal Courts =>917
damages when employer, in "good faith," Airline could not relitigate issues of
erroneously but reasonably believed that whether "equal work" was performed by
his conduct conformed to legal require- its female stewardesses and male pursers
ments. Civil Rights Act of 1964, 701 et and whether it could, as a matter of law,
seq., as amended, 42 U.S.C.A. 2000e et have "willfully violated" Equal Pay Act
seq.; Fair Labor Standards Act of 1938, notwithstanding absence of iniquitous state
6(d), (d)(l)(iv), as amended, 29 U.S.C.A. of mind, based on argument that prior hold-
206(d), (d)(l)(iv); Portal-to-Portal Act of ings were "clearly erroneous" and that ad-
1947, 11, 29 U.S.C.A. 260. herence to law of the case would work
manifest injustice where there were no tru-
2. Labor Relations <s=>1333
ly "exceptional circumstances." Fair La-
Amendment providing that compensa- bor Standards Act of 1938, 6(d), as
tion differentiation "authorized by" Equal amended, 29 U.S.C.A. 206(d).
Pay Act shall not be unlawful employment
practice under Title VII did not change 6. Labor Relations =>1333
governing law "equal pay for equal work Difference in supervisory responsibili-
regardless of sex" so as to exonerate em- ty between airline's male pursers and fe-
ployers who in fact failed to reward equal male stewardesses was not sufficient to
work with equal pay, so long as they hon- justify unequal pay. Fair Labor Standards
estly believed that jobs in question were in Act of 1938, 6(d), as amended, 29 U.S.
fact different. Fair Labor Standards Act C.A. 206(d).
of 1938, 6<d)(l)(iv), as amended, 29 U.S.
C.A. 206(d)(l)(iv); Civil Rights Act of 7. Labor Relations @=>1527
1964, 703(h), as amended, 42 U.S.C.A. District court's finding that positions
2000e-2(h). of male purser and female stewardess at
airline were substantially equal for Equal
3. Labor Relations =1333 Pay Act purposes was not contradicted by
Basing wages on "a bona fide job rat- findings of fact. Fair Labor Standards Act
ing system," a sex-neutral objective meas- of 1938, 6(d), as amended, 29 U.S.C.A.
ure, exemplifies legitimate employer con- 206(d).
duct Congress envisioned as permissible
use of other factors other than sex, but 8. Labor Relations =1535
employer's mere belief, untested by any District court's determination that air-
objective job rating system, that men and line's violation of Equal Pay Act was will-
women are not engaging in equal work ful because employer consciously and vol-
514

CHe as 740 F.2d 1071 (1984)
untarily charted a course which turned out ter cutoff date urged by airline, contained
to be wrong was not clearly erroneous, essentially the same open-ended class defi-
thus rendering airline liable for a third nition as 1971 certification order, but air-
year of back pay. Portal-to-Portal Pay Act line did not test meaning of 1974 order as
of 1947, 6(a), 29 U.S.C.A. 255{a). to stewardesses who had not received no-
9. Labor Relations =1550 tice of class action in its appeal from that
Airline, on third appeal in employment order. Civil Rights Act of 1964, 701 et
discrimination action, failed to establish seq., as amended, 42 U.S.C.A. 2000e et
any basis for abandoning district court's seq.
original back pay formula based on its 13. Federal Courts =916
claim that back pay for stewardesses Airline waived its claim that district
should have been computed on basis of court erroneously expanded class of stew-
single "cabin attendant" classification, ardesses who could recover back pay under
rather than based on actual "premium pay Title VII by failing to raise that issue on its
level" airline established for its male purs- first appeal. Civil Rights Act of 1964,
ers. Civil Rights Act of 1964, 701 et 701 et seq., as amended, 42 U.S.C.A.
seq., as amended, 42 U.S.C.A. 2000e et 2000e et seq.
seq.; Fair Labor Standards Act of 1938,
6(d), as amended, 29 U.S.C.A. 206(d). 14. Federal Courts <s=>916, 917
10. Federal Courts 0=916 Where airline had opportunity on its
Airline waived any argument available first appeal of adverse judgment in Title
with respect to its claim that formula for VII class action to raise issue of status of
calculating back pay awards for steward- two groups of class members, but failed to
esses should have been based on average do so, its failure to raise argument consti-
rates of pay of stewardesses and pursers, tuted waiver and airline's subsequent at-
rather than higher rate of pay for male tack on ruling denying airline's requested
pursers, by not raising that issue on its exclusions from class was barred by princi-
first appeal of adverse judgment. Civil ples of waiver and law of the case. Civil
Rights Act of 1964, 701 et seq., as Rights Act of 1964, 701 et seq., as
amended, 42 U.S.C.A. 2000e et seq.; Fair amended, 42 U.S.C.A. 2000e et seq.
Labor Standards Act of 1938, 6(d), as 15. Labor Relations =>1479
amended, 29 U.S.C.A. 206(d). Minnesota's two-year limitation on re-
11. Federal Courts =917 covery of wages under any federal or state
Airline failed to establish any basis for law was applicable as limitation on back
overturning law of the case with regard to pay recovery by airline stewardesses em-
Title VII and Equal Pay Act back pay ployed by Minnesota airline in that three-
awards to stewardesses based on its claim year District of Columbia statutes relied on
that purser pay included compensation di- by district court were not designed to pre-
rectly traceable to "foreign flying" and vent sex discrimination or did not evince
that component should be excluded as "fac- particular interest in preventing sex dis-
tor other than sex." Civil Rights Act of crimination. D.C.Code 1981, 12-301,
1964, 701 et seq., as amended, 42 U.S. 36-216; M.S.A. 541.07(5); Civil Rights
CA. 2000e et seq.; Fair Labor Standards Act of 1964, 706(d, e, g), as amended, 42
Act of 1938, 6(d), as amended, 29 U.S. U.S.C.A. 2000e-5(e), (f)(l), (g).
CA. 206(d).
16. Labor Relations <=>1535, 1545
12. Federal Courts =>916, 917 District court's determination that air-
Airline's attack on 1980 order and defi- line did not have reasonable foundation for
nition of Title VII class was barred by positive belief that in fact its policies of
doctrines of waiver and law of the case compensating stewardesses and male purs-
where 1974 remedial order, issued long af- ers complied with Equal Pay Act was not
515
clearly erroneous and, therefore, steward- fect of extending prejudgment period from
esses were entitled to liquidated damages. 1974 through entry of final judgment in
Portal-to-Portal Act of 1947, 11, 29 U.S. 1982.
C.A. 260.
21. Federal Courts <3=953
17. Labor Relations e=1542
Although stewardesses employed by Law of the case doctrine did not pre-
airline received retroactive adjustment of clude district court from awarding post-
their wages when collective bargaining judgment interest on liquidated damages
agreement and negotiation for two years under Equal Pay Act based on district
equalized stewardess and purser pay rates, court's 1974 ruling refusing to award post-
airline was not relieved of its liquidated judgment interest on prejudgment interest
damages liability for period of negotiations where liquidated damages were not award-
during which pursers received, but stew- ed until 1980 and those damages were com-
ardesses continued to await, higher pay to pensatory, rather than a substitute for pre-
which they were entitled under Equal Pay judgment interest. 28 U.S.C.A. 1961;
Act. Portal-to-Portal Act of 1947, 11, 29 Fair Labor Standards Act of 1938, 6(d),
U.S.C.A. 260. as amended, 29 U.S.C.A. 206(d).
18. Labor Relations @=393 22. Interest =39(3)

Railway Labor Act section requiring Stewardesses who obtained awards of
airline to maintain status quo during two- liquidated damages under Equal Pay Act
year pendency of contract negotiations did were entitled to postjudgment interest on
not preclude airline from immediately all elements of the judgment, including li-
equalizing wages upward in accordance quidated damages. 28 U.S.C.A. 1961;
with judicial determination that existing Fair Labor Standards Act of 1938, 6(d)'
wage disparity between pay of stewardess- as amended, 29 U.S.C.A. 206(d).
es and pursers violated Equal Pay Act.
Fair Labor Standards Act of 1938, 6(d)(2),
as amended, 29 U.S.C.A. 206(d)(2); Rail-
Appeals from the United States District
way Labor Act, 6, 45 U.S.C.A. 156.
Court for the District of Columbia (Civil
19. Labor Relations <3=1535 Action No. 70-2111).
In calculating amount of back pay due
to stewardesses under Equal Pay Act and Phillip A. Lacovara, Washington, D.C.,
Title VII, stewardesses were entitled to with whom William R. Stein, Washington,
longevity credit for their pre-Act service in D.C., was on the brief for Northwest Air-
that denying longevity credit for that ser- lines, Inc., appellant in Nos. 83-1033 and
vice, when men were given such credit for 83-1167 and appellee in Nos. 83-1034 and
doing the same work, would differentiate 83-1168.
between similarly situated males and fe- Michael H. Gottesman, Washington,
males on basis of sex. Civil Rights Act of D.C., with whom Robert M. Weinberg and
1964, 701 et seq., as amended, 42 U.S. Jeremiah A. Collins, Washington, D.C.,
C.A. 2000e et seq.; Fair Labor Standards were on the brief for Laffey, et al., appel-
Act of 1938, 6(d), as amended, 29 U.S. lees in Nos. 83-1033 and 83-1167 and ap-
C.A. 206(d). pellants in Nos. 83-1034 and 83-1168. Ju-
20. Federal Courts =917 lia Penny Clark, Washington, D.C., also
Under law of the case doctrine, district entered an appearance for Laffey, et al.
court properly declined to revise its prior
ruling with respect to rate of prejudgment Before GINSBURG, BORK and STARR,
interest after it had been determined that Circuit Judges.
1974 remedial order in employment discrim-
ination action was not final, which had ef- OPINION PER CURIAM
516

Cite as 740 F.2d 1071 (1984)
PER CURIAM: in early 1973. In November 1973 findings
This Equal Pay Act-Title VII class action and conclusions, Laffey v. Northwest Air-
concerns the former practices of Northwest lines, Inc., 366 F.Supp. 763 (D.D.C.1973)
Airlines (NWA) with regard to the employ- [hereafter, 197S Findings], the district
ment of cabin attendants. Women em- court determined that NWA had violated
ployed by NWA in the all-female category the law in each of the respects alleged in
"stewardess" received less pay than men in the complaint. Of dominant importance to
the all-male "purser" category. In addi- the monetary relief awarded plaintiffs, the
tion, NWA required female cabin attend- district court found that stewardesses and
ants to share double rooms on layovers men serving as pursers performed substan-
while providing single rooms to male cabin tially equal work. The purser/stewardess
attendants; it paid male attendants, but salary differential, the less desifable lay-
not females, a cleaning allowance for uni- over accommodations for women, and the
forms; and it imposed weight restrictions cleaning allowance limited to men, were
upon females only.1 held impermissible under both the Equal
Pay Act and Title VII; the weight limits
The lawsuit challenging these practices for women were declared unlawful under
commenced in the summer of 1970 and has Title VII. In an April 1974 remedial order,
been intensely litigated since its inception. Laffey v. Northwest Airlines, Inc., 374
District court adjudications were twice ap- F.Supp. 1382 (D.D.C.1974) [hereafter, 1974
pealed at interlocutory stages; in response, Remedial Order], the district court de-
panels of this court meticulously reviewed creed injunctive relief and specified back-
an extensive record. On November 30, pay computation formulas. Judgment pur-
1982, the district court concluded all tasks suant to the April order was entered May
within its charge and entered final judg- 20, 1974.
ment. NWA appealed and plaintiffs cross-
appealed. Both sides appealed. In a painstaking
opinion, released October 20, 1976, a panel
We affirm the challenged rulings in prin- of this court affirmed the district court "on
cipal part. On the few points on which we all substantive questions of statutory in-
do not uphold the district court's determi- fringement" and "uph[e]ld most but not all
nations, we specify, precisely, the required the [district] court's specifications on re-
modification so that adjustments to the fi- lief." Laffey v. Northwest Airlines, Inc.,
nal judgment can be calculated without fur- 567 F.2d 429, 437 (D.C.Cir.1976) [hereafter,
ther adversarial contest. Our opinion thus Laffey / ] . NWA's petition for rehearing
serves as the court's closing chapter in this and suggestion for rehearing en bane were
nearly fourteen-year-old controversy. denied September 8, 1977; its petition for
certiorari was denied February 21, 1978.
I. BACKGROUND 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d
A. Prior Proceedings 792.
Trial of plaintiffs' multiple charges of When the case returned to the district
NWA violations of the Equal Pay Act, 29 court, in March 1978, NWA moved for re-
U.S.C. 206(d) (1982), and Title VII of the lief from 1974 injunctive provisions, which
Civil Rights Act of 1964, 42 U.S.C. 2000e had been stayed pending appeal and peti-
to 2000e-17 (1976 & Supp. V 1981) (Title tion for certiorari, requiring it to furnish
VII), commenced in late 1972 and concluded female cabin attendants single rooms on
1. The practices cited in text were the predicate their own choice aboard flights; imposing flight
for monetary relief. Several other challenged arrangements under which male attendants,
practices were redressed solely by injunctive without regard to length of service, ranked as
reJief: restricting "purser" jobs to men alone; superior to female attendants aboard a plane;
permitting ina.'e cabin attendants, but not fe- maintaining a shorter maximum height require-
males, to wear eyeglasses; permitting male at- ment for female cabin attendants than for
tendants, but not females, to carry luggage of males.
517
layovers and cleaning allowances for uni- an end to dispute." Id. (quoting Legate v.
forms. The district court denied NWA's Maloney, 348 F.2d at 164, 166 (1st Cir
motion, and NWA appealed. 1965)).
Again after careful review, on October 1, B. Issues on Appeal
1980, we affirmed the district court's order. We indicate here the order in which this
Laffey v. Northwest Airlines, Inc., 642 opinion discusses the issues raised by the
F.2d 578 (D.C.Cir.1980) [hereafter, Laffey cross-appeals, and state, summarily, our
II]. In the process, we observed that the disposition as to each issue.
1974 order, reviewed in Laffey I, did not
1. NWA's Appeal
qualify as a final judgment because the
district court had not at that point complet- a. Alleging supervening Supreme Court
ed its work and disassociated itself from decisions, NWA asks us to overturn i) the
the case. Id. at 583-84. We noted, how- root determination that the purs-
ever, that the 1974 adjudication, awarding er/stewardess pay differential was based
extensive injunctive relief, was appealable on sex, and ii) the already twice-reviewed
of right under 28 U.S.C. 1292(a)(l) (1982), determination that the cleaning allowance
and that "the permanence and pervasive- for men but not women discriminated im-
ness of the order's injunctive provisions permissibly on the basis of sex. Discern-
enabled review on the merits of all interre- ing no clear changeindeed no change at
lated features of the order save those the allin the governing law, we adhere to the
District Court had reserved for future adju- law of the case on both issues.
dication." Id. at 584 n. 49. b. Asserting a flaw in the determination
While clarifying that the 1974 district that stewardesses and pursers performed
court adjudication was not a "final deci- "equal work," double faults in the meas-
sion" within the meaning of 28 U.S.C. urement of backpay, oversights in the deli-
1291 (1982), we hastened to declare the neation of the Title VII class, and error in
district court "entirely right," Laffey II, characterizing the Equal Pay Act violations
642 F.2d at 584, in declining NWA's reas "willful," NWA urges alteration of prior
quest to modify the injunction; modifica- dispositions on these questions. In view of
tion would have involved reopening issues the full and fair opportunity NWA had to
already decided by that court and "laid to litigate these issues in the district court
rest" when we affirmed the district court's and on appeal in Laffey I, we hold that "the
directives in Laffey I. Id. at 584-85. We strong policy of repose," Laffey II, 642
then stated with emphasis impossible to F.2d at 585, precludes consideration of
obscure that even if we were convinced of NWA's earlier rehearsed arguments and
the error of a decision made on an earlier more recent afterthoughts.
appeal in this litigation, we would adhere to
c. As to the Title VII back-pay accrual
the established "law of the case" absent
period, we adhere to the law of the case on
extraordinary cause to depart from our
the nonretroactivity of that statute's cur-
precedent.. Id. at 585-86. Pointedly, we
rent two-year limitation. However, we
cited the First Circuit's admonition against
modify the district court's specification of a
reconsideration "after denial of petitions
three-year period borrowed from the Dis-
for rehearing and certiorari." Id. at 585 &
trict of Columbia's minimum wage law or
n. 58 (citing Legate v. Maloney, 348 F.2d
general statute of limitations. Instead, we
164, 166 (1st Cir.1965)).
hold that, in the unique circumstances
The district court has now resolved all presented here, the time frame most appro-
disputed matters in this protracted case. priately borrowed is Minnesota's two-year
We approach the multiple issues raised by limitation on "the recovery of wages ...
NWA and the three raised by plaintiffs under any federal or.state law." Minn.
mindful that "[i]f justice is to be served," StatAnn. 541.09(5) (West Supp.1982-
Laffey II, 642 F.2d at 585, "[t]here must be 1983).
518

Cite as 740 F.2d 1071 (1984)
d. Reviewing the district court's award vice; and 3) allow post-judgment interest
of liquidated damages under the Equal Pay on liquidated damages. In all other re-
Act, we conclude that guidance supplied in spects, we affirm the district court's dispo-
Laffey I was properly followed and sustain sitions.
the determination in all respects.
2. Plaintiffs' Cross-Appeal II. ALLEGED SUPERVENING SUPREME
COURT PRECEDENT
a. As to credit for service prior to the
Laffey I affirmed district court determi-
passage of the Equal Pay Act and Title
nations that the purser/stewardess pay dif-
VII, Laffey I instructed only a "look at the
ferential, and the cleaning allowance for
collective bargaining agreement" on re-
men's uniforms but not women's, violated
mand to determine whether "longevity"
the Equal Pay Act and Title VII. ' Super-
rather than "seniority" controlled. 567
vening Supreme Court decisions, NWA
F.2d at 476. Our opinion did not contem-
maintains, reveal that those affirmations
plate stripping plaintiffs of the pre-Act ex-
were wrong. NWA cites County of Wash-
perience credits that the district court ini-
ington v. Gunther, 452 U.S. 161, 101 S.Ct.
tially allowed them for the limited purpose
2242, 68 L.Ed.2d 751 (1381), as supervening
of calculating the backpay NWA owed for
precedent establishing that the purs-
post-Act service. Failure to accord plain-
er/stewardess pay differential was lawful,
tiffs longevity credit for all their days of
and relies on General Electric Co. v. Gil-
service to NWA as stewardesses, in deter-
bert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d
mining their post-Act pay level, would im-
343 (1976), with regard to the cleaning al-
permissibly project into the post-Act period
lowance. Neither High Court decision, we
a sex-based differential. We therefore re-
conclude, alters the law earlier applied in
verse the district court's post-Laffey I rul-
this case. We therefore reaffirm Laffey I
ing on this point and instruct that court to
as the law of the case and of the circuit.2
recognize plaintiffs' pre-Act longevity in
A. The Purser/Stewardess Pay Differen-
calculating backpay for the relevant, post-
tial
Act, time periods.
The alleged supervening decision, Coun-
b. As to interest, the district court prop- ty of Washington v. Gunther, 452 U.S.
erly declined plaintiffs' invitation to revisit 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981),
the 1974 remedial order provision on the resolved this "sole issue": whether female
rate of pre-judgment interest. However, jail guards who did not prove their work
no "law of the case" settled the question of equal in skill, effort, and responsibility to
post-judgment interest on liquidated dam- the work of male jail guards, and therefore
ages. That issue ripened on remand after failed to establish an Equal Pay Act viola-
our Laffey I decision. Reviewing the dis- tion, could nonetheless challenge their rate
trict court's ruling on the merits, we re- of pay as discriminatory under Title VII.
verse the determination and hold plaintiffs 452 U.S. at 166 n. 8, lOl" S.Ct. at 2246 n. 8.
entitled to post-judgment interest on liqui- The Supreme Court answered "yes"; it
dated damages. held that despite complainants failure .to
In sum, we instruct the district court on satisfy the equal work standard, they could
remand to 1) allow backpay under Title VII remain in court under Title VII on their
beginning two years, not three years, prior charge that the County had set "the wage
to the filing of the first EEOC charge; 2) scale for female guards, but not for male
credit plaintiffs with pre-Act longevity in guards, at a level lower than its own sur-
calculating backpay due for post-Act ser- vey of outside markets and the worth of
2. A decision of one panel of this court may not 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420
be overruled by another panel; a panel's deci- (1979); United States v. Caldwell, 543 F.2d 1333,
sion may be rejected only by the court en bane. 1369 n. 19 (D.C.Cir.1974) (citing cases), cert,
See Brewster v. Commissioner of Internal Reve- denied. 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d
nue, 607 F.2d 1369, 1373 (D.C.Cir.), cert, denied, 97 (1976).
519
the jobs warranted." Id. at 166, 101 S.Ct. First, NWA's position is-incompatible with
at 2246. Title VII, the Court explained, in the statutory design. Under the Fair La-
contrast to the Equal Pay Act, does not bar bor Standards Act, which Congress
"claims .of discriminatory undercompensa- adopted as the procedural and remedial
tion ... merely because [the female com- framework for Equal Pay Act claims, a
plainants] do not perform work equal to court has discretion to disallow, in whole or
that of male [employees]." Id. at 181, 101 in part, liquidated (double) damages "if the
S.Ct. at 2254. employer shows to the satisfaction of the
In imaginative argument, NWA asks us court that the act or omission giving rise to
to spy a silver lining for employers in Gun- [the violation] was in good faith and that he
ther. NWA urges that the Supreme Court, had reasonable grounds for believing that
in the process of rejecting a proffered re- his act or omission was not a violation of
stricted reading of Title VII, enlarged the t[he Act]." 29 U.S.C. 260 (1982). NWA
scope of the Equal Pay Act's residuary contends that an employer's actual but er-
affirmative defense, which permits pay- roneous belief that two jobs are in fact
ment of different wages if "made pursuant different wholly shelters the employer
to ... a differential based on any other from equal pay for equal work liability,
factor other than sex." 3 For purposes of NWA Brief at 14, 33; that contention is not
this argument, NWA concedes that pursers synchronous with a congressional direction
and stewardesses in fact performed "equal giving judges discretion only to limit, not to
work" within the meaning of the Equal eliminate, damages when an employer, in
Pay Act.4 But grace a Gunther, NWA "good faith," erroneously but reasonably
contends, an employer "who premises a believed his conduct conformed to legal
wage differential on his determination that
requirements.5
two jobs are different" escapes Equal Pay
Act and Title VII liability, "even if that [2] Second, NWA's inflation of the
conclusion is later found to be mistaken." Equal Pay Act's residuary defense to exon-
Brief for Northwest Airlines, Inc. [hereaf- erate employers who in fact failed to re-
ter, NWA Brief] at 33.
ward equal work with equal pay, so long as
[1] For two reasons we cannot indulge they honestly believed the jobs in question
NWA's endeavor to persuade us that Gun- in fact were different, Reply Brief of
ther widened the Equal Pay Act's excep- Northwest Airlines, Inc. [hereafter, NWA
tion for pay differentials "based on a bona Reply Brief] at 3-4, 19, is not sensibly
fide use of 'other factors other than sex.' " extracted from Justice Brennan's opinion
Gunther, 452 U.S. at 170, 101 S.Ct. at 2248 for the Court in Gunther. That decision
(quoting 29 U.S.C. 206(dXl)(iv) (1982). interpreted Title VII to accommodate sex-
3. The Act specifies four affirmative defenses; eration by the district court, and supplied this
they permit payment of different wages for instruction:
equal work if "made pursuant to (i) a seniority Nor is it enough that it appear that the em-
system; (ii) a merit system; (iii) a system which ployer probably did not act in bad faith; he
measures earnings by quantity or quality of must affirmatively establish that he acted
production; or (iv) a differential based on any both in good faith and on reasonable grounds
other factor other than sex." 29 U.S.C. [the former involving a "subjective inquiry,"
206(d)(l) (1982). the latter, "an objective standard"]. That duty
is accentuated here, where the prevalence of
4. Specifically, in presenting its Gunther super- sex-discrimination litigation against the air-
vening law position, NWA acknowledges "the line industry naturally prompts the question
district judge's determination of the objective whether NWA should reasonably have known
equality of the [purser and stewardess] jobs and that neither its own tradition [reserving purs-
the amount and nature of the pay differential."
See Reply Brief of Northwest Airlines, Inc. ers' jobs and pay for men], the industry cus-
[hereafter, NWA Reply Brief) at 17. tom nor the employees' silence was a reliable
indicium of the demands of the law.
5. We note, moreover, that Laffey I remanded Laffey I, 567 F.2d at 465 (footnotes omitted;
the question of NWA's "good faith" for reconsid- quotations in brackets from id. at 464).
520

Cite as 740 F.2d 1071 (1984)
based discrimination in compensation be used by an employer in setting compen-
claims that did not fit within the equal pay sation, without offense to federal law, even
for equal work principle. Specifically, when such factors have a disparate impact
Gunther rejected the argument that the on one sex. Gunther, 452 U.S. at 170-71
"Bennett Amendment" to Title VII, 42 & n. 11, 101 S.Ct. at 2248-2249 & n. 11.
U.S.C. 2000e-2(h) (1982),6 confined Title
VII sex-based wage discrimination com- [3] Basing wages on "a bona fide job
plaints to claims that could also be brought rating system"a sex-neutral, objective
under the Equal Pay A.ct. Gunther held measureexemplifies the legitimate em-
that the Bennett Amendment had a more ployer conduct Congress envisioned as a
modest design: it simply incorporated into permissible "use of 'other factors other
Title VII the Equal Pay Act's four affirma- than sex,'" Gunther explained. Id.
tive defenses.7 The Gunther opinion left NWA, however, employed no "bona fide
untouched governing law on "equal pay for job rating system" or other sex-neutral,
equal work regardless of sex." See Corn- objective standard8 in setting wage rates
ing Glass Works v. Brennan, 417 U.S. 188, for pursers and stewardesses. The pas-
190, 94 S.Ct. 2223, 2226, 41 L.Ed.2d 1 sage NWA clips, read in its entirety, con-
(1974). tains no suggestion that Congress also en-
visioned as a bona fide "other factor" an
NWA features most prominently, see employer's mere belief, untested by any
NWA Brief at 28-29, lines clipped from a objective job rating system, that men and
passage in Gunther in which Justice Bren- women are not engaging in equal work.
nan focused on the Equal Pay Act's fourth Indeed, a fair reading of the passage indi-
affirmative defense, applicable to differen- cates just the opposite.9
tials "based on any other factor other than
sex." 29 U.S.C. 206(d)(l)(iv) (1982). In Gunther, in the portion featured by
this passage, Justice Brennan stated, that NWA, addressed only the impact Equal
genuinely non-sex-based factors, for exam- Pay Act affirmative defenses might have
ple, "a bona fide job rating system," might on "the outcome of some Title VII sex-
6. The Bennett Amendment provides that com- ployer who sincerely believed jobs a court finds
pensation differentiation "authorized by" the equal were in fact different.
Equal Pay Act "shall not be an unlawful employ-
ment practice under [Title VII]." 42 U.S.C. 9. NWA constantly tenders cropped snippets that
2OOOe-2(h) (1982). convey less than comprehensively the Court's
statements in Gunther. As a further example,
7. See supra note 3 NWA quotes the Court as "observing] that a
prohibition against discrimination against wom-
8. See, e.g., Plemer v. Parsons-Gilbane, 713 F.2d en 'because of their sex' strikes [only] at 'dispar-
1127, 1136-37 (5th Cir.1983) (indicating that ex- ate treatment of men and women.' " NWA Brief
perience, if in fact the basis for a pay differen- at 29 (NWA's emphasis). The Court's opinion
tial, qualifies as a "factor other than sex," but places the emphasis elsewhere: "In forbidding
holding that even when the employer introduces employers to discriminate against individuals
evidence demonstrating a male employee's because of their sex, Congress intended to strike
greater experience, plaintiff must be accorded a at the entire spectrum of disparate treatment of
full and fair opportunity to rebut proof that the men and women resulting from sex stereo-
pay differential was in fact attributable to a types." Gunther, 452 U.S. at 180, 101 S.Ct. at
demonstrated objective, non-sex-based factor). 2253 (quoting and adding emphasis to the
Plemer reversed a district court judgment for Court's footnote in Los Angeles Dep't of Water &
defendant, and emphasized that "once [an Equal Power v. Manhart. 435 U.S. 702, 707 n. 13, 98
Pay Act] plaintiff shows that she was paid less S.Ct. 1370, 1375 n. 13, 55 L.Ed.2d 657 (1978), in
than a male who was performing substantially turn quoting Sprogis v. United Air Lines, Inc.,
the same job," "the burden both of production 444 F.2d 1194, 1198 (7th Cir.), cert, denied, 404
and of [ultimate] persuasion" shifts to the em- U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971.
ployer. Id. at 1136. Cited to us by NWA as a It is remarkable that NWA has selected and
supplemental authority, see FEDR.APP P. 28(j); adjusted to suit its purpose words that origi-
D.C. CmR. 8(k), Plemer offers not a shred of nated with the Seventh Circuit in Sprogis, a
support for NWA's thesis that no liability for an decision holding an airline's no-marnage rule
Equal Pay Act violation is incurred by an era- for stewardesses unlawful under Title VII.
521
based wage discrimination cases." Gun- evil mindin NWA's words, "disparate
ther, 452 U.S. at 170, 175 n. 14, 101 S.Ct at treatment" that proceeds from "discrimina-
2248, 225Q n. 14. NWA, however, main- tory animus" or a "bad-faith attempt to
tains that the Court's discussion should be evade the law." NWA Brief at 14, 39.
read to augur incorporation of a line of
Title VII "disparate treatment" decisions In sum, so far as we can tell, neither
into Equal Pay Act law.10 Even if we Congress nor the Court has ever enter-
could find in Gunther the between-the-lines tained the notion that an employer who
dictum NWA ascribes to the Court, NWA's intentionally classifies jobs by sex, and in
argument for exoneration from equal pay fact pays women less for the same work,
liability would not succeed. can achieve exoneration by showing he sin-
cerely thought the jobs he separated by sex
The Title VII decisions NWA cites unex- were different But see NWA Brief at 33;
ceptionally involve situations in which the NWA Reply Brief at 3-4, 19. Justice Bren-
employer did not classify jobs overtly by nan's opinion in Gunther, it is certain, es-
sex (or race). E.g., Texas Department of tablishes no such novel law. Where, as
Community Affairs v. Burdine, 450 U.S. here, there is an actual intent to separate
248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). jobs by sex, and the employer is found in
In that setting, where sex-based categoriza- fact to have paid women less for equal
tion, if it exists, is covert, the Court has work, all precedent in point indicates that
elaborated rules for establishing discrimi- disparate treatment is solidly established.12
natory intent or the lack thereof. This
case, however, involves overt sex classifica- In Goodrich v. International Brother-
tionexplicitly disparate treatment. Purs- hood of Electrical Workers, 712 F.2d 1488,
er jobs were reserved for men only; the 1493 n. 11 (D.C.Cir.1983), we noted that the
stewardess class was all-female." NWA Equal Pay Act's residuary defense cover-
has cited no case, nor do we know of any, ing "factors other than sex" affords no
suggesting that a Title VII or Equal Pay "convenient escape from the Act's basic
Act plaintiff must demonstrate, beyond command." Unless and until Congress or
sex-segregated job classifications and un- the Supreme Court declares otherwise, our
equal pay for equal work, the employer's dominant guides remain the command that
10. The Court indicated in Gunther that the deemed qualified for purser posts upon comple-
Equal Pay Act's fourth affirmative defense tion of the FSA probationary period. By May
might shelter a pay standard otherwise vulnera- 1965, all but three of the FSAs who remained
ble under Title VII as "fair in form, but discrim- with NWA had been elevated to purser posi-
inatory in operation." 452 U.S. at 170, 101 S.Ct. tions. The three men who had not advanced to
at 2248 (quoting Griggs v. Duke Power Co., 401 the purser category weie voluntarily based in
U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 Hawaii. See 1973 Findings. 366 F.Supp. at 766-
(1971)). NWA seizes on this acknowledgment 67, 772-73 (Findings of Fact (FOF) 11-17, 37-
that Equal Pay Act law may limit some Title VII 38).
neutral rule "disparate impact" claims, and in-
sists that the Court somehow meant to infuse
into Equal Pay Act law Title VII "disparate treat- 12. An employer's "discriminatory motive" or
ment" analysis developed in cases of alleged "desire to pay menbecause they were men
nonovert sex classification not even cited en more than [women received]," far from ranking
passant in Gunther. as an "essential element" of a plaintiffs claim,
as NWA maintains, see NWA Brief at 14, 34, is
11. From 1947, when the purser classification not even relevant, under the Supreme Court's
was established, until June 15, 1967, NWA con- decisions, to the determination whether explicit-
fined the purser position to males. Between ly sex-based classification violates Title VII. See
1949 and 1957, NWA hired men for a second Arizona Governing Comm. for Tax Deferred An-
cabin attendant position. Men engaged for nuity & Deferred Compensation Plans v. Norris,
these posts were called "flight service attend- VS. , 103 S.Ct. 3492, 77 L.Ed.2d 1236
ants" (FSAs). FSAs performed essentially the (1983); Los Angeles Dep't of Water & Power v.
same duties and received the same pay as fe-
male cabin attendants. Unlike the all-female Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d
stewardess class, however, FSAs had a contrac- 657 (1978). See also infra note 15.
tual right to fill purser vacancies and were
522

Cite as 740 F.2d 1071 (1984)
"equal work will be rewarded by equal Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50
wages," S.Rep. No. 176, 88th Cong., 1st L.Ed.2d 343 (1976), and describes that case
Sess. 1 (1963), and the instruction that the as an "intervening decision," NWA Brief at
Equal Pay Act is a "broadly remedial" 17, although Gilbert issued over two years
statute targeting an "endemic problem of before Laffey II was argued.14
employment discrimination," by firmly es- Gilbert was a Title VII challenge that
tablishing as federal law the "principle of turned on the Court's conclusion that the
equal pay for equal work regardless of disability program in question did not
sex." Corning Glass Works, 417 U.S. at group persons by "gender as such." Gil-
190, 195, 208, 94 S.Ct. at 2226, 2228, 2234. bert, 429 U.S. at 134-35, 97 S.Ct. at 407-
NWA's argument, attributing to Gunther 408 (quoting Geduldig v. Aiello, 417 U.S.
a meaning that would substantially reduce 484, 496 & n. 20, 94 S.Ct. 2485, 2492 & n.
the force of the federal equal pay require- 20, 41 L.Ed.2d 256 (1974)). The issue was
ment, is artful but unavailing; it fails to an employer's exclusion of women unable
elevate from the untenable to the plausible to work due to pregnancy or childbirth
the claim that in Laffey I we incorrectly from disability benefits. The program did
stated the law governing the purs- not divide potential recipients by "gender
er/stewardess pay differential. as such," the Court reasoned, because one
B. The Uniform Cleaning Allowance of the two groups comprised "nonpregnant
[4] Laffey I affirmed the district persons," and thus "include[d] members of
court's determination that NWA discrimi- both sexes." Gilbert, 429 U.S. at 134-35,
nated on the basis of sex by providing a 97 S.Ct. at 407-408. In the absence of
male-only uniform cleaning allowance. 567 classification based upon "gender as such,"
F.2d at 456. Laffey II held a second chal- the Court inquired whether there was any
lenge to the district court's ruling on the "gender-based discriminatory effect." Id.
cleaning allowance unwarranted by any at 137-39, 97 S.Ct. at 408-410. NWA relies
"circumstance capable of generating injus- on the "discriminatory effect" portion of
tice from adherence to the law of the case." the Gilbert analysis. NWA Brief at 53.
642 F.2d at 586. Despite the stern "law of Even in Gilbert itself, however, the
the case" analysis and admonition in Laffey Court indicated that "discriminatory ef-
II, id. at 585-86, and the court's further fect" analysis should not come into play
statement that it considered Laffey I's when the program at issue divides recipi-
cleaning allowance holding "fully accu- ents into groups classified by "gender as
rate," id. at 586,13 NWA seeks to continue such." 429 U.S. at 136-37 & n. 15, 97 S.Ct.
the fray. It cites General Electric Co. v. at 408-409 & n. 15.15 That is the situation
13. The court reviewed its prior holding, not for 14. Moreover, the precedential force of Gilbert
NWA's benefit, but "in the interest of soundness had become clouded before presentation of the
of the law for the future." Laffey II, 642 F.2d at Laffey II appeal. See Los Angeles Dep't of Water
586. It acknowledged that outlays for uniforms & Power v. Manhart, 435 U.S. 702, 723-25, 98
and their maintenance, when made primarily S.Ct. 1370, 1382-1384, 55 L.Ed.2d 657 (1978)
for the employer's benefit, do not count as (Blackmun, J., concurring).
wages under the Fair Labor Standards Act. Id.
15. NWA, in its Gilbert argument, manifests a
at 588. Allowances that primarily serve the
blindspot similar to the one evident in its failure
interest of the employee, however, do qualify as to perceive, in presenting its Gunther argument,
wages, the court stated. The male-only cleaning that when an employer intentionally classifies
allowance, the court concluded, was a wage jobs or job benefits by sex, one need not search
supplement, a benefit to the employee rather further to find differential treatment based
than a "boon to the employer." Id. at 589. Had upon gender. Compare, e.g., Frontiero v. Rich-
the allowance primarily benefited the employer ardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d
rather than the employee, the court observed, 583 (1973) with Personnel Administrator v. Fee-
"NWA obviously would have extended it to fe- ney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870
male cabin attendants as well." Id. (1979).
523
hereall male cabin attendants received a III. ADDITIONAL LAW OF THE CASE
uniform benefit package with a cleaning AND W A I V E R ISSUES
allowance, all female attendants received a A. Laffey I Holdings Challenged as
different package without a cleaning allow- "Clearly Erroneous"
ance.1* [5] NWA does not dispute that Laffey I
Congress has overruled Gilbert prospec- "actually decided" two issues which it now
tively "to prohibit sex discrimination on the seeks to relitigate: first, that "equal work"
basis of pregnancy," 17 and the Supreme was performed by NWA stewardesses and
Court believes Congress "also rejected the pursers, and second, that NWA, as a mat-
ter of law, could have "willfully" violated
test of discrimination [Gilbert ] employed." the Equal Pay Act notwithstanding the ab-
Newport News Shipbuilding & Dry Dock sence of an "iniquitous ... state-of-mind."
Co. v. EEOC, 462 U.S. 669, , , 103 Laffey I, 567 F.2d at 461; NWA Brief at 11
S.Ct. 2622, 2627, 2631, 77 L.Ed.2d 89 (1983). n. 1, 13. NWA seeks to reopen these two
In its most recent expression in point, the issues, not by positing the existence of
Court left no doubt that, when classifica- supervening case law, but by arguing that
tion by sex is undisguised, there is no need our prior holdings were "clearly errone-
to consider, as Gilbert did, "the average ous" and that adherence to law of the case
monetary value of the [overall benefit in these instances "would work a manifest
package in question] to male and female injustice." Melong v. Micronesian Claims
Commission, 643 F.2d 10, 17 (D.C.Cir.1980)
employees." Id. 103 S.Ct. at 2632 n. 26. (quoting White v. Murtha, 377 F.2d 428,
Further, the Court quoted with apparent 432 (5th Cir.1967)).18 Because we perceive
approval the EEOC's position that it is not no error whatever in Laffey I's disposition
"a defense under Title VII to a charge of of these two issues, let alone the "clear"
sex discrimination in benefits that the cost error and "manifest injustice" that would
of such benefits is greater with respect to warrant departure from the law of the
one sex than the other." Id. (quoting 29 case, we reject NWA's arguments and reaf-
C.F.R. 1604.9(e) (1983)). firm the holdings of Laffey I with respect
to the issues of equal work and willfulness.
In Laffey II, the court described the
cleaning allowance "as simply another sup- Moreover, we take this opportunity to
plement to male salaries." 642 F.2d at 589. emphasize that this court will not, absent
truly "exceptional circumstances," Laffey
Gilbert presents no occasion for us to II, 642 F.2d at 585, look favorably on argu-
study again that twice-studied issue. See ments against the law of the case which
id. at 586. fall only under the "manifest injustice" ru-
bric.19 We do not intend to allow this ave-
16. NWA, in its Reply Brief at 27-28, suggests 18. The Supreme Court recently noted approv-
that we view uniform-related benefits as a ingly the dual elements of "clear error" and
"grooming" issue with no discriminatory impli- "manifest injustice" in law of the case doctrine,
cations because of the "conventional distinc- citing the White v. Murtha decision on which
tion" in apparel men and women wear. While this court relied in its Melong analysis. Arizona
it is too late for NWA to dress the matter in new v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct.
garb, we note that the question here is not 1382, 1391 n. 8, 75 L.Ed.2d 318 (1983).
whether men can be required to wear pants,
19. Laffey II, 642 F.2d at 585-86, set out the
and avoid kilts. Cf. Willingham v. Macon Tel.
following situations, drawn from Greater Boston
Publishing Co., 507 F.2d 1084 (5th Cir.1975) (en
Television Corp. v. FCC, 463 F.2d 268, 278-79
bane) (holding that Title VII is not violated by (D.C.Cir.1971), cert, denied, 406 U.S. 950, 92
an employer's refusal to hire men (but not wom- S.Ct. 2042, 32 L.Ed.2d 338 (1972), in which a
en) with long hair). Women's clothes require court may recall its mandate, to illustrate cir-
cleaning just as men's do; and prescribing more cumstances justifying a deviation from the law
costly uniforms for stewardesses was NWA's of the case:
decision, not a benefit women sought or an [T]o correct clerical mistakes, to clarify [the]
action impelled by the market or convention. opinion or mandate, to remedy fraud on the
court or other misconduct, to avoid divergent
17. See Pub.L. No. 95-555, 92 Stat. 2076 (1978) results in cases pending simultaneously, or to
(codified at 42 U.S.C. 2000e(k) (1982)). minister to other similar aberrations.
524

Cite as 740 FJd 1071 (1984)
nue of attack on the law of the case to were paid more than less capable or effec-
become an auxiliary vehicle for the repetitive supervisors.
tion of arguments previously advanced, Seizing upon the district court's recogni-
without success, in appellate briefs, petition in FOF 65, above, that pursers super-
tions for rehearing, and petitions for certio- vised stewardesses, but not vice versa,
rari. NWA argues vehemently that the two jobs
1. Equal Work cannot be deemed "equal" because "[j]obs
that entail different degrees of supervisory
In its 1973 Findings, the district court responsibility are not equal within the me-
concluded that the jobs of purser and stew- aning of the Equal Pay Act." NWA Brief
ardess at NWA "require equal skill, effort at 41. Next, relying upon the court's de-
and responsibility and are performed under scription in FOF 67, above, of. the cabin
similar working conditions." 366 F.Supp. attendants' "accountability" for the dis-
at 788, 789 (Findings of Fact (FOF) 78; charge of their supervisory duties, NWA
Conclusions of Law 2, 4). In Laffey I, this maintains that the district courts findings
court explicitly affirmed this finding and "compel the conclusion that the supervi-
conclusion, 567 F.2d at 453, thus establish- sory responsibility had real content" and
ing the equal work prerequisite to Equal that Laffey I's conclusion that the pursers'
Pay Act liability as the law of the case. supervisory function was 'insignificant"
thus "actually contradicted the trial judge's
NWA's challenge to this holding hinges findings." Id. at 42.
on its interpretation of two of the district
court's findings of fact in 1973. In one We cannot accept either branch of
pivotal finding, FOF 65, the district court NWA's argument. It is, of course, elemen-
described the "chain of command" for an tary that "jobs need not be identical in
NWA flight: every respect before the Equal Pay Act is
If one purser is aboard, he is denominat- applicable . . . . " Corning Glass Works v.
ed the Senior Cabin Attendant irrespec- Brennan, 417 U.S. 188, 203 n. 24, 94 S.Ct.
tive of his relative length of service as 2223, 2232 n. 24, 41 L.Ed.2d 1 (1974). In
compared to the other attendants. If Laffey I, this court explained:
two or more pursers are aboard the [T]he phrase "equal work" does not
flight, the most senior purser is the Sen- mean that the jobs must be identical, but
merely that they must be "substantially
ior Cabin Attendant. If no purser is
equal." A wage differential is justified
aboard the flight, the most senior stew-
only if it compensates for an appreciable
ardess or FSA is the Senior Cabin At-
variation in skill, effort or responsibility
tendant. between otherwise comparable job work
1973 Findings, 366 F.Supp. at 785. The activities.
nature and scope of a Senior Cabin Attend- 567 F.2d at 449 (citations omitted). This
ant's supervisory responsibilities is describ- "substantially equal" test, which has been
ed in another critical finding, FOF 67: adopted by no fewer than nine other cir-
Stewardesses who serve as Senior Cabin cuits, Thompson v. Sawyer, 678 F.2d 257,
Attendant are subject to discipline if they 272 n. 12 (D.C.Cir.1982), necessarily, implies
fail to carry out their "supervisory" re- that there can be job responsibilitiesin-
sponsibilities, and are held just as ac- cluding supervisory dutiesso " 'insub-
countable as pursers who fail to carry stantial or minor' " as not to " 'render the
out their "supervisory" responsibilities. equal pay standard inapplicable.' " Laffey
Id. The district court also noted in this I, 567 F.2d at 449 (quoting 29 C.F.R.
latter finding that NWA had no merit pay 800.122 (1975)).
adjustment whereby either pursers or [6] Therefore, to the extent that
stewardesses who "supervise" effectively NWA's argument suggests that any differ-
No such aberrations are present in the instant case.
525
ence in supervisory responsibility renders ment, FOF 67, when read together with
jobs unequal, it is manifestly incorrect as a FOF 65, "compels" the conclusion that the
matter of law. Critically, the authority district court viewed the supervisory re-
NWA -cites as support for this proposition sponsibilities as not insubstantial. This
is not, in fact, inconsistent with the "sub- contention, however, plainly overlooks the
stantially equal" test.20 Indeed, NWA it- district court's express finding that the
self acknowledges several other cases in pursers' supervisory functions "require no
which supervisory responsibilities were greater skill, effort or responsibility than
found to be too minor to warrant a finding the other functions assigned to all cabin
of unequal responsibility. See Hill v. J.C. attendants," 1973 Findings, 366 F.Supp. at
Penney Co., 688 F.2d 370, 373-74 (5th Cir. 786 (FOF 69), and its further explicit find-
1982); Hodgson v. American Bank of ing of equal "skill, effort and responsibili-
Commerce, 447 F.2d 416, 422 (5th Cir. ty" on the part of stewardesses and purs-
ers, id. at 788-89 (FOF 78; Conclusions of
1971).
Law 2, 4). It follows as ineluctably as
[7] NWA's claim that Laffey I's find- night follows day that the district court
ing of equal work "actually contradicted" found that the pursers' supervisory duties
the district court's findings is also patently did not alter the equivalence of the two
incorrect. As we understand NWA's argu- jobs under scrutiny in this case.21
20. NWA cites Usery v. Richman, 558 F.2d 1318, tiffs. Since the Noles opinion does not describe
1321 (8th Cir.1977); Notes v. Concord Lace the nature of the male worker's supervisory
Corp., 25 FEP Cas. (BNA) 367, 370 (M.D.N.C. responsibilities, NWA cannot plausibly maintain
1980), and 29 C.F.R. 800.122, 800.130 (1983), that the case stands for the proposition that any
as authority for its assertion that "[j]obs that difference in supervisory duties renders jobs
entail different degrees of supervisory responsi- unequal. Moreover, another male worker had
bility are not equal within the meaning of the heavy lifting functions and was one of only a
Equal Pay Act." NWA Brief at 41. None of few employees trained in the operations of a
these authorities conflict with the view of the particular kind of plant machinery.
court in Laffey I that supervisory responsibil-
Finally, NWA can find no support in the cited
ities can be so minor as not to render two jobs
Wage and Hour Division of the Department of
unequal.
Labor regulations. On the contrary, 29 C.F.R.
Indeed, NWA grossly misreads Usery's hold- 800.122 clearly states that "[Unsubstantial or
ing. In Usery, the court explicitly followed the minor differences in the degree or amount of
Eighth Circuit's use of the "substantially equal" skill, or effort, or responsibility required for the
standard of comparison in evaluating the work performance of jobs will not render the equal
of a male cook and four female cooks. 558 F.2d pay standard inapplicable." Far from offering
at 1320. That case in no wise stands for the
support to NWA at this late stage of the litiga-
proposition that any difference in supervisory
tion, this section, as noted in the text above, was
responsibilities, without more, automatically
works a cognizable legal difference in jobs. To invoked by the Laffey I court in its discussion of
the contrary, NWA conveniently and inexplica- equal work. Nor does 800.130 provide any
bly overlooks the clear statements in Usery that comfort to NWA. That section states, inter alia,
the male employee had different responsibilities the common-sense proposition that if an em-
than female employees, worked during the ployee assumes supervisory responsibilities dur-
cafe's busiest hours, was given greater duties of ing the absence of the regular supervisor, higher
heavy lifting, was responsible for training other wage rates to such a "relief supervisor may be
employees, and "had authority to make effective appropriate. But to embrace this proposition
recommendations with regard to discipline." scarely means that we should read out of the
All this was sufficient for the Eighth Circuit to regulations the bedrock principle that "insub-
conclude, in affirming the district court's factu- stantial or minor differences" in skill or respon-
al findings, that the job of the male employee sibility do not constitute a legally significant
had "[e]nough substantial distinctions [as to distinction between jobs. The issue is not, as
both] effort and responsibility . " to render it NWA would have it, whether there are "differ-
legally different from the jobs of the four fe- ent degrees of supervisory responsibility" but
male employees. That case is a far cry from the whether the differences are insubstantial and
instant situation. minor. As to that issue, NWA's arguments fail
Similarly, in Noles the district court employed completely.
a "substantially equal" analysis in finding that
the work of one male employee, who was "in 21. NWA claims that FOF 69 reflects an "errone-
charge o f an entire shift in one department of a ous assumption" by the district court that "the
textile mill, was not equal to that of the plain- issue under the Equal Pay Act is whether the
86-974 0 - 89 - 19
526

Cite as 740 F.2d 1071 (1984)
There is, in cutting through the prolific course which turns out to be wrong." Id.
underbrush planted in our way by NWA, at 462.
upon analysis no conflict whatever between NWA was held to have failed the second
the district court and this court as to the branch of this test:
importance of the supervisory duties as- NWA not only knew of the Equal Pay
signed to pursers. Laffey I affirmed the
Act and its content but also correctly
district court's finding that "NWA purser
and stewardess positions are substantially understood its prohibition on different
equal within the intent of the Equal Pay salary levels for men and women per-
Act...." 567 F.2d at 453. NWA has forming substantially similar work.
come forward with nothing to suggest that With little or nothing beyond internal
this affirmance of the district court's con- consideration by laymeneven after the
clusion with respect to the importance of present legal challenge got under way
supervisory duties was in error. NWA's the company consciously though errone-
argument, based ultimately on a tortured ously concluded that its treatment of
reading of the district court's findings and pursers and stewardesses was unaffect-
an inaccurate portrayal of the applicable ed by the Act. We deem that sufficient
law, fails. to comprise willfulness; in the District
Court's words, "[t]he conduct of the
2. Willfulness Company in the exercise of that judg-
[8] Under 29 U.S.C. 255(a) (1976), a ment was willful."
"willful" violation of the Fair Labor Stan- Id. at 463 (citation omitted).22
dards Act (FLSA), of which the Equal Pay
In this appeal, NWA argues that the law
Act is a part, triggers a three-year, as
of the case established in Laffey I is "clear-
opposed to the Act's ordinary, two-year
statute of limitations. In Laffey I, this ly erroneous" and the source of "manifest
court determined that NWA's violation of injustice," once again urging upon us a
the Equal Pay Act had been "willful" with- contrary analysis of the legislative intent
in the meaning of section 255(a), 567 F.2d undergirding section 255(a). NWA con-
at 463, thus rendering NWA liable for a tends that a proper reading of the legisla-
third year of backpay. In reaching this tive history of the 1966 FLSA amendments
conclusion, the court canvassed the legisla- "confirms that Congress meant [the willful-
tive history of section 255(a) and rejected ness standard] to encompass only intention-
NWA's suggestion that a violation must be al disregard for the law, rather than the
animated by a bad purpose or evil intent to deliberate-but-erroneous test adopted" in
be deemed willful. Id. at 461. Instead, the Laffey I. NWA Brief at 23. For the rea-
court determined that employer noncompli- sons stated below, we disagree with NWA
ance with the Equal Pay Act is "willful" in as to the proper test of willfulness under
at least two other instances: where the the Equal Pay Act. Accordingly, we reaf-
employer "is cognizant of an appreciable firm Laffey I's finding that NWA willfully
Possibility that he may be subject to the violated the Act within the meaning of sec-
statutory requirements and fails to take tion 255(a).
steps reasonably calculated to resolve the In recasting its version of the relevant
doubt," and where "an equally aware em- legislative intent, NWA argues that. the
ployer consciously and voluntarily charts a Laffey I court was erroneously of the view
ij>s are more alike than they are different " 22. Similar considerations regarding NWA's
NWA Brief at 42. This argument falls before meager efforts to ascertain its obligations under
V*express
6
language and plain meaning of FOF the Equal Pay Act were central to the district
that the supervisory functions "require no court's award of liquidated damages, on remand
neater ... effort or responsibility." NWA is from the decision in Laffey I, as discussed infra
conveniently seeing ghosts in conjuring up the in section V.
" " J j o f a district courteleven years and two
Ppeals
Dracin
agohaving-fallen into error by em-
8 allegedly erroneous assumptions.
527
that there was no relevant legislative histo- of the law. Id. at 86. To substantiate this
ry to shed light on the pivotal word, "will- new learning as to the true meaning of the
ful." NWA Brief at 85. NWA accordingly legislative materials, NWA cites a sentence
invites us to focus on three unadopted 1965 from the minority statement in the Com-
bills which were the predecessors of the mittee report on the revised bill, indicating
1966 amendments. NWA deems "crucial" that the Subcommittee's discussions had
certain portions of the hearings on one of "resulted in the adoption of several amend-
those bills, H.R. 8259, 89th Cong., 1st Sess. ments offered by members of the minori-
(1965), and the report of the House Educa- ty." Id. (citing H.R.Rep. No. 871, supra,
tion and Labor Committee on a second bill, at 74). NWA jumps from this statement to
H.R. 10518. H.R.Rep. No. 871, 89th Cong., the conclusion that the willfulness provi-
1st Sess. (1965). The importance of the sion was adopted "in response to the criti-
latter is touted on the basis that it repre- cism of the proposal to impose an addition-
sents the "first appear[ance] [of section al year of liability even on 'honest' violat-
255(a)] in its present form." NWA Reply ors of the [Equal Pay] Act." NWA Reply
Brief at 42.23 Brief at 42.
The original administration-sponsored
bill, H.R. 8259, sought, inter alia, to in- NWA's argument proves no such thing.
crease the limitations period to three years The single sentence upon which it relies
for all FLSA claims, and accordingly did from the minority statement provides woe-
not prescribe willfulness as a precondition fully inadequate support for its restrictive
to liability for the third year. NWA at- reading of the "willfulness" language.
tempts to fashion a favorable interpreta- That sentence stands all by itself in the
tion of the willfulness provision ultimately introduction to the minority report. No-
incorporated into section 255(a) in the fol- where in this document is there any de-
lowing manner: first, NWA summarizes a scription of the amendments which the mi-
few snippets of testimony against H.R. nority proposed, why it proposed them,
8259,24 and then notes that at the conclu- what the majority said in response to the
sion of the hearings, "the Subcommittee proposals, or why the proposals were
met in executive session and drafted a new adopted by the full Committee. Moreover,
bill that included the [willfulness] language the minority report does not contain o sin-
ultimately enacted." NWA Brief at 85. gle word about the "willfulness" provision
NWA then attributes this change to legisla- in H.R. 10815. This brings us, then, to a
tors who opposed the extension of liability broader point about this provision. The
in cases not involving conscious disregard proposed legislation was lengthy, complex,
23. NWA claims that the Laffey I court "over- three years was thus encumbered." 567 F.2d at
looked" this committee report. Id. While the 460 (emphasis added).
opinion in Laffey I does not expressly refer to
the report, it is clear that the court was aware of 24. NWA specifically references a colloquy be-
- the genesis of section 255(a) as we know it. See tween Secretary of Labor Wirtz and Congress-
567 F.2d at 460 & n. 222 (reference to hearings man Martin, an opponent of all three bills con-
on H.R. 8259). Even though neither party sidered in 1965, in which Rep. Martin expressed
called the court's attention to the committee concern that an across-the-board extension of
report in Laffey I, there is no reason to believe the limitations period to three years would pe-
that the court was unaware of it. Moreover, nalize employers who had not deliberately vio-
NWA badly over-argues the point that the Laffey lated the law. Hearings on H.R. 8259 Before the
I court was operating without benefit of the House Ed. and Labor Comm., General Sub-
enlightening legislative history which NWA has comm. on Labor, 89th Cong., 1st Sess. 54 (1965).
unearthed at the eleventh hour. NWA says that NWA also notes that a number of witnesses in
the Laffey / court fashioned its "willfulness" test
the hearings on H.R. 8259 were of the opinion
"on the impression that there was no relevant
that the back-pay period "should not be in-
legislative history." NWA Brief at 85. Laffey I
said no such thing, nor did it imply as much. creased for violations which 'result from misun-
Rather, the court noted, quite correctly, that it derstanding of the law,' or 'honest differences of
had uncovered no "clearcut statement in the opinions.'" NWA Brief at 85, citing id. at 980,
legislative history as to why the extension to 2250 (emphasis added).
528

Cite u 740 FM 1071 (1984)
and dealt with a number of thorny issues, under Title VII, the district court's 1974
including an increase in the minimum wage Remedial Order awarded each Title VII
and a significant expansion of the FLSA's plaintiff25 backpay in the amount of the
coverage. Adoption of the "willfulness" full difference between what she earned as
language ultimately codified in section a stewardess and what she would have
255(a) was undoubtedly a matter of limited earned if she had been paid at the same
congressional focus in the 1965 and 1966 rate as a purser of equal seniority. 374
deliberations over this legislation; the pau- F.Supp. at 1385-86. On appeal in Laffey I,
city of pertinent legislative materials, NWA challenged certain aspects of these
therefore, is not surprising. "remedial measures," 567 F.2d at 437, in-
Given the relative silence of the legisla- cluding what it saw as the district court's
tive record in this respect, Laffey I, 567 improper refusal to adjust the pursers'
F.2d at 460, a silence which NWA has not rates of pay downward in the amount of
persuasively broken with its theory ad- the compensation allegedly based on the
vanced on this third appeal, we defer to the "foreign flying" required of pursers. Of
careful treatment and final settlement of pivotal importance, however, NWA failed
this issue in Laffey I. The law of the case at that time to appeal the underlying deci-
we honor here rests on the Laffey I court's sion to use pursers' pay rates as the upper
painstaking review of the legislative histo- end of the back-pay formula.
ry, including Congress' pivotal concern The court in Laffey I determined that
over small, unsophisticated businessesa NWA had failed to show that any portion
category that manifestly excludes NWA of the pursers' pay was attributable to
which might not recognize the sweep of the "foreign flying." 567 F.2d at 452 n. 153.
FLSA's coverage. Id. at 460-61. Equally See infra section III. B.2. The Laffey I
important, Laffey I recognized the need for decision also affirmed the back-pay formu-
a liberal construction of remedial statutes,
la adopted by the district court. Id. at 478.
and at the same time appropriately took
into account the absence of clear congres- In 1978, following the remand of these
sional intent to impose upon plaintiffs the proceedings to the district court after Laf-
heavy burden of demonstrating an employ- fey I, NWA for the first time attacked the
er's evil intent. Id. This latter point is use of the full purser rates, apart from its
especially important in light of the fact unsuccessful, earlier argument with re-
that the Equal Pay Act merely allows a spect to the alleged "foreign flying" com-
plaintiff to recover, after an appropriate ponent. NWA at this juncture claimed that
showing, wages which have been improper- the district court should use a hypothetical
ly denied, and does not involve the imposi- wage rate which would have been paid to a
tion of criminal sanctions. single, combined class of "cabin attend-
ants," rather than purser rates, in comput-
In short, we find nothing compelling, and ing backpay. Record Document ("R.") 16.
certainly nothing demonstrating "clear er- The district court, however, refused to en-
ror" in this court's earlier opinion, in the tertain NWA's argument, on the ground
1965 sources relied upon by NWA. The that "the relief requested is precluded by
careful analysis of the meaning of 29 the Judgment of the Court of Appeals in
U.S.C. 255(a) set out in Laffey I must that it is beyond the Mandate of that Court
stand. and seeks to raise issues not challenged on
B. Backpay appeal " Order Denying Motion to
Moving from the domain of the Equal Modify Award of Backpay to the Title VII
Pay Act's legislative history to an issue Class (D.D.C. July 9, 1979), R. 50. .
25. It will be recalled that the instant action was the Title VII class, as well as to the Equal Pay
brought both under Title VII and the Equal Pay Act plaintiffs. In this appeal, NWA's challenge
Act. The back-pay element of relief was grant- to the computation of backpay is with respect to
ed by the district court as part of the remedy to the Title VII plaintiffs only.
529
NWA now seeks to avoid the law of the mium pay level" NWA established for
case as to the computation of backpay by pursers. In support of this proposition,
arguing that under the post-Laffey I deci- NWA relies upon an affidavit proffered in
sions of the Supreme Court in Internation- 1978. See Declaration of Terry M. Ers-
al Brotherhood of Teamsters v. United kine, Joint Record Excerpts ("J.R.E.") 139.
States, 431 U.S. 324, 97 S.Ct. 1843, 52 NWA argues that the use of the pursers'
L.Ed.2d 396 (1977), City of Los Angeles v. pay rate in the back-pay formula, rather
Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 than the lower rate which arguably would
L.Ed.2d 657 (1978), and Ford Motor Co. v.
have been paid to those in the hypothetical,
EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73
combined cabin attendant classification, vi-
L.Ed.2d 721 (1982), the back-pay award
olates the bedrock rule that Title VII back-
here impermissibly overcompensates the Ti-
tle VII plaintiffs by placing them "in a pay may not "catapult [plaintiffs] into a
better position than they would have been better position than they would have en-
in if the alleged discrimination had not oc- joyed in the absence of discrimination."
curred." NWA Brief at 15; see also id. Ford Motor, supra, 458 U.S. at 234, 102
43-47. NWA also revives its earlier, un- S.Ct. at 3067. It also argues that Man-
successful argument that the back-pay hart, in particular, establishes that the
awards under both Title VII and the Equal back-pay remedy here was improper.
Pay Act are incorrectly inflated by the NWA Brief at 43-44.
court's failure to exclude from pursers' pay We disagree. In the first place, and
that portion attributable to "foreign fly- most critically, we do not read these three
ing." NWA once again tries to character- High Court decisions as establishing any
ize "foreign flying" compensation as a pertinent new rule of law as respects this
"factor other than sex" for Equal Pay Act case under Title VII. The fundamental
purposes, and invokes the three above-cited proposition, that the purpose of Title VII
High Court decisions in support of its claim remedies is to "make whole" the victims of
that Title VII damages should be reduced discrimination has been settled for some
by this amount. time, see, e.g., Albemarle Paper Co. v.
Because this court affirmed the back-pay Moody, 422 U.S. 405, 421, 95 S.Ct. 2362,
awards in Laffey I, and inasmuch as we 2373, 45 L.Ed.2d 280 (1975), and was clear-
discern no relevant supervening change in ly recognized by this court in Laffey I. See
the law embodied in the decisions relied 567 F.2d at 476 ("The remedial order in this
upon by NWA, we decline the invitation to case is to make employees whole, but not
overturn the law of the case as to the more than whole."). Therefore, we per-
computation of backpay. ceive nothing new, as respects NWA's ar-
gument, in these three decisions.
1. Wage Rate for Hypothetical Com- We also find unpersuasive NWA's asser-
bined Cabin Attendant Classifica- tion that Manhart compels the abandon-
tion ment of the back-pay formula affirmed in
[9] NWA strenuously contends that if it Laffey I. Above all, Manhart arose out of
had not maintained the sex-segregated job the extraordinarily sensitive setting of a
classifications of purser and stewardess sex-based contributory system in a pension
and had, instead, used only a single "cabin plan, circumstances far removed from the
attendant" classification, the wage rate situation here of treating female employees
paid to employees in that hypothetical clas- differently although they performed the
sification would have closely approximated same work as male employees. Second,
the rates paid by other airlines with only a the only language that provides comfort to
single classification, rather than the "pre- NWA is set forth in a single footnote,26
26. Footnote 36 of the Manhart opinion reads, in Further doubt about the District Court's eq-
relevant part: uitable sensitivity to the impact of a refund
530

Cite as 740 F.2d 1071 (1984)
consisting of guardedly worded dicta, trict court dealt only with the "mechan-
Manhart, in contrast to the case before us, ics of payment" pursuant to the 197%. Re-
disallowed any retroactive monetary medial Order. See 374 F.Supp. at 1389.
award, and in the course of so doing sug- The part of the case that the court reserved
gested that if such an award had been obviously did not include the back-pay for-
appropriate, the lower court "should at mula itself, which was clearly set out by
least have considered" a different formula. the district court, id. at 1385-87 (para-
The High Court's understandably deep con- graphs 5-7), and which plainly used the full
cern for equitable considerations, including purser pay rates as the upper end of the
the grave consequences to pension funds back-pay computation.29 Thus, NWA had
flowing from a retroactive finding of liabili- the opportunity to appeal any feature of
ty, strongly suggests that this portion of
the back-pay award, including the use of
the Manhart footnote was not addressed to
the matter of remedies in garden-variety the full purser rates, in Laffey I. There-
Title VII cases, such as the case at hand.27 fore, NWA must be deemed to have waived
any argument available at that time which
[10] Moreover, in the absence of super- it did not assert.
vening, controlling authority, NWA cannot
properly requestfor the first timethat Adherence to the rule that a party
this court mandate the use of "averaging waives a "contention that could have been
techniques" in the back-pay formula.28 As but was not raised on [a] prior appeal,"
explained supra at p. 1076, the procedural Munoz v. County of Imperial, 667 F.2d
posture of this case at the time of La/fey I
"enabled review on the merits of all inter- 811, 817 (9th Cir.), cert, denied, 459 U.S.
related features of the order save those the 825, 103 S.Ct. 58, 74 L.Ed.2d 62 (1982), is,
District Court had reserved for future ad- of course, necessary to the orderly conduct
judication," Laffey II, 642 F.2d at 584 of litigation. Failure to follow this rule
n. 49. The issues reserved by the dis- would lead to the bizarre result, as stated
order is raised by the court's decision to admirably by Judge Friendly, "that a party
award the full difference between the contri-
butions made by male employees and those million Americans participate in retirement
made by female employees. This may give plans other than Social Security." 435 U.S. at
the victims of the discrimination more than 721, 98 S.Ct. at 1382. See abo Arizona Govern-
their due. If an undifferentiated actuarial ing Comm. for Tax Deferred Annuity & Deferred
table had been employed in 1972, the contri- Compensation Plans v. Norris, 463 U.S. 1073,
butions of women employees would no doubt , 103 S.Ct. 3492, 3512, 77 L.Ed.2d 1236
have been lower than they were, but they (1983) (O'Connor, J.) (to avoid adverse impact
would not have been as low as the contribu- on pension funds, decision extending Manhart's
liability rule should be made prospective).
tions actually made by men in that period.
The District Court should at least have con- 28. NWA did not have to languish on the legal
sidered ordering a refund of only the differ- sidelines awaiting the 1978 culmination of the
ence between contributions made by women Manhart litigation. Manhart scarcely enunciat-
and the contributions they would have made ed for the first time a principle that, save for its
under an actuarially sound and nondiscrimi- footnote 39, would have theretofore been unsup-
natory plan. portable in Title VII law or theory. As we
435 U.S. at 720 n. 36, 98 S.Ct. at 1381 n. 36. previously indicated, Manhart in this particular
respect broke no new legal ground, but instead
27. It is, as we note in the text above, clear that observed the possible effects of the well-estab-
Manhart involved Title VII principles in the lished "make whole" principle in the setting of
extraordinarily sensitive and complex setting of that case.
a contributory pension plan. Concern for the
financial stability of pension plans, upon which 29. It further appears from the record that NWA
employees ultimately rest their hopes and ex- considered the district court's 1974 Remedial
pectations for financial security at retirement, Order to be a final judgment. See R. 161'(NWA
was evident throughout the Court's opinion. As Notice of Appeal from "[t]he final judgment
Justice Stevens, speaking for the Court, put it: entered in this action on May 20, 1974. .."), R.
"Nor can we ignore the potential impact which 160, R. 164 (NWA supersedeas bond entered in
changes in rules affecting insurance and pen- its appeal from the May 20, 1974 "final judg-
sion plans may have on the economy. Fifty ment").
531
who has chosen not to argue a point on a C. Composition of the Title VII Class
first appeal should stand better as regards NWA challenges the composition of the
the law of the case than one who had Title VII class on several grounds. It ar-
argued and lost." Fogel v. Chestnutt, 668 gues that the district court's order of De-
F.2d 100, 109 (2d Cir.1981), cert, denied, cember 5, 1980, J.A. 168, improperly added
459 U.S. 828, 103 S.Ct. 65, 74 L.Ed.2d 66 to the class "hundreds of new employees"
(1982). NWA's failure to challenge the who had been "hired after the cut-off date
backpay formula on its first appeal result- for the last round of notices" of the class
ed in the Laffey I affirmance of that por- action. NWA Brief at 55-56. NWA also
tion of the' 1974 Remedial Order, and the appeals from the district court's order of
inclusion of the formula in the law of the June 6, 1980, J.R.E. 162, which included in
case. See Raxton Corp. v. Anania Associ- the Title VII class two groups of steward-
ates, Inc., 668 F.2d 622, 624 (1st Cir.1982). esses which NWA seeks to excludethose
on leave from their jobs as stewardesses as
2. Foreign Flying of the cut-off date who subsequently decid-
[11] As previously indicated, NWA ed not to return to work, and those who as
reargues its already rejected position that of the cut-off date had transferred perma-
purser pay included compensation directly nently to non-stewardess jobs at NWA.
traceable to "foreign flying" and that this We consider each of these arguments sepa-
component of compensation should be ex- rately.
cluded as a "factor other than sex" under
the Equal Pay Act back-pay computations, 1. Stewardesses Not Notified of Class
and from the Title VII back-pay computa- Action
tions under the Supreme Court decisions In its February 1971 order, the district
discussed supra in section III.B.l. court certified the instant case as a class
We disagree. We find, for the reasons action under both Fed.R.Civ.P. 23(b)(2) and
outlined in the preceding section, that the 23(b)(3). The court defined the Title VII
Supreme Court decisions in Manhart, class as "all female in-flight cabin attend-
Teamsters, and Ford Motor do not bring ants currently employed by [NWA] and/or
into question the treatment in Laffey I of employed by [NWA] any time since July 2,
the "foreign flying" issue, as those cases 1965." 321 F.Supp. 1041, at 1043. There-
merely articulate already established prin- after, two rounds of notices were sent to
ciples of Title VII law.30 NWA's other class members, in 1971 and 1972, pursuant
arguments on this issue are foreclosed by to the requirements of Fed.R.Civ.P.
the law of the case, clearly set out in 23(c)(2).
Laffey I, 567 F.2d at 452-53 n. 153. Unless The district court, in its 1974 Remedial
there is supervening authority, and we Order, again defined the term "Title VII
have concluded that there is none, NWA plaintiff(s)" to include "all female cabin
must satisfy the stringent test of "clear attendants employed by [NWA] at any time
error" and "manifest injustice," a rigorous on or after July 2, 1965, excluding only
standard which has not been met as to the those who filed timely written elections
foreign flying issue. As this court held with this Court to be excluded from this
eight years ago, NWA simply failed to lawsuit in its entirety." 374 F.Supp. at
carry its burden on this issue the first time 1384. In its appeal from this order in
around. We refuse to replough this well- Laffey I, NWA did not challenge the fore-
worn field that much deserves henceforth going definition of the class on the grounds
to lie fallow. it now advances. NWA did, however, chal-
30. At most, NWA can argue that Manhart ex- quirement, but rather is aimed at ensuring the
pressly mandates "equitable sensitivity" in fash- fidelity of the lower federal courts in shaping
ioning back-pay awards. This principle does equitable decrees to implement fully the para-
not embody some novel and independent re- mount Title VII "make whole" principle.
532

Cite as 740 F.2d 1071 (1984)
lenge the inclusion of stewardesses whose been fixed by the universe of cabin attend-
employment with NWA was terminated pri- ants to whom notice was sent." NWA
or to the ninetieth day preceding the first Brief at 57. It further argues that the
filing with the Equal Employment Opportu- December 1980 order was improper, inas-
nity Commission ("EEOC"). The Laffey I much as Rule 23(c)(l) permits a court to
court agreed, and directed the district court "alter" a class certification only prior to
to exclude this group of ex-employees from the decision on the merits. NWA perceives
the class. See infra section III.C.2. On here the evil of "one-way intervention."
remand, the district court corrected its ear- Appellees, on the other hand, heatedly
lier error (and another, minor mistake as to dispute NWA's claim as to the original
the actual date of the first EEOC filing). "understanding" that the Title VII class
It redefined the Title VII class to include did not include the disputed group of stew-
only stewardesses who were employed by ardesses. Appellees cite to substantial por-
NWA on or after January 29, 1970. Em- tions of the record as support for the true
ployees terminated prior to this date were "understanding" of an open-ended class.32
to be included only on a showing of certain Under appellees' theory, NWA had full
extenuating circumstances. This redefini- knowledge of the manner in which the
tion was reflected in the district court's class definition would be applied and thus
Order Respecting Computation of Backpay waived the arguments now advanced here
and Implementation of Final Judgment, because it did not assert those contentions
November 30, 1982.31 Thus, NWA had in the proceedings leading up to the 1974
scrutinized the Title VII class definition at Remedial Order or in its appeal to this
the time of Laffey I. court in Laffey I. Appellees further argue
Seeking to avoid waiver and law of the that Laffey I established the open-ended
case obstacles to appellate review, NWA class definition as the law of the case,
claims, in effect, that it was not on notice which, as an additional ground, bars NWA
at the time of Laffey I that the district from now attacking inclusion of the disput-
court would include in the class steward- ed group of stewardesses.
esses never furnished the requisite notice [12] Without deciding whether the par-
or opportunity to opt out under Rule ties had the -disputed "understanding" as to
23(b)(3). NWA interprets the district the meaning of the 1971 definition of the
court's refusal to exclude those steward- Title VII class, we conclude that NWA's
esses who had not received notice of the attack on the 1980 order (and definition) is
class action, J.A. 168, as dependent upon barred by the doctrines of waiver and law
the district court's view that the parties of the case. We reach this conclusion in
and the court had shared, as of the time of light of the fact that the 1974 Remedial
the 1971 and 1974 orders, "the intent and Order, issued long after the 1972 cut-off
understanding" that the definition of the date now urged by NWA, contained essen-
Title VII class adopted therein was broad tially the same open-ended class definition
enough to encompass the disputed group of as the 1971 certification order. NWA
stewardesses. NWA Brief at 56-57. knew, or should have known, that the ex-
NWA argues that there was no such press terms of the 1974 ordersweeping
"understanding" between the parties, and into the class "all female cabin attendants
claims that it "proceeded to trial with the employed by [NWA] at any time on or
understanding that the backpay class had after July 2, 1965" (emphasis added)
31. The 1982 Order defines the Title VII class as filed timely written elections . . . to be exclud-
"all female cabin attendants employed by the e d . . . . " J.R.E. 202. ' '
Company at any time on or after January 29,
1970 (and certain other female cabin attendants 32. Appellees' Reply Brief at 60-62 (discussing
who are to be treated as eligible . . . by reason appellees' argument to district court regarding
of detrimental reliance on certain class notices), the December 1980 order, R. 31 at 5-12).
except for those female cabin attendants who
533
could manifestly be read as extending be- sion individually when the class filing was
yond 1972. It was up to NWA to test the made are properly members of the ...
meaning of the 1974 order as to steward- class." Id. NWA reasoned that the dis-
esses who had not received notice of the crimination in this case "could not be
class action, if it so desired, in its appeal deemed continuing as to those who left
from that orderthe appeal which culmi- [NWA's] employ more than ninety days
nated in Laffey I. NWA failed to do so. prior to the class filing with the [EEOC],"
NWA, albeit represented now by different id. at 473, and that, as a result, those
counsel, must be held to have waived the employees were not entitled to recover as
opportunity to raise this issue. For the members of the Title VII class.
reasons stated supra at pp. 1089-1090, we The Laffey I court agreed with NWA's
must recognize the law of the case estab- contention in this respect:
lished in Laffey I. A severing of the employment relation-
[13] In addition, we note that NWA's ship ordinarily terminates a discrimina-
argument regarding the impropriety of tion against the severed employee, and
"one-way intervention" has been rejected activates the time period for filing
by other courts which have held that charges with the Commission concerning
"classwide backpay under Title VII can be any violation which occurred at separa-
awarded in a [Rule 23] (b)(2) class action or which may have been continuing
tion." M This development in Title VII law, up to the date thereof. To hold other-
signalled by the Fourth Circuit's 1971 deci- wise would effectively read the timely-fil-
sion in Robinson v. Lorillard Corp., 444 ing requirement out of the statute.
F.2d 791 (4th Cir.), cert, dismissed, 404 Id. (citations omitted). Accordingly, the
U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 Laffey I opinion directed the district court,
(1971), was well under way as of NWA's on remand, to "exclude from the Title VII
appeal in Laffey I. Had NWA wished to recovery those employees whose connec-
clarify the definition of the Title VII class tion with NWA was dissolved more than
in relation to this expansion of (b)(2) ac- ninety days before the class filing with the
tions, it clearly had the opportunity to raise [EEOC]," while retaining those terminated
the issue in Laffey I.3* stewardesses "who would have brought
themselves within the Equal Pay Act class
2. Former Stewardesses . . . . " Id. at 476.
In Laffey I, NWA argued that the dis- After remand, NWA then sought the ex-
trict court erred, in its 1974 Remedial Or- clusion of two additional groups of ex-
der, "in granting relief pursuant to Title stewardesses: those on leaves of absence
VII in the form of backpay to stewardesses on the 90th day prior to the filing of the
whose employment with [NWA] [had] ter- first EEOC charge and who, subsequent to
minated more than ninety days prior to the that date, left the employ of NWA without
first filing by an employee of [a] ... having returned to work as stewardesses;
charge with the Equal Employment Oppor- and those who were employed by NWA at
tunity Commission." 567 F.2d at 472. least until the 90th day prior to the first
NWA's argument was based upon the set- EEOC filing, but who had transferred to
tled rule that "only those employees who non-stewardess positions. The district
could have filed charges with the Commis- court denied NWA's requested exclusions
33. Appellees' Reply Brief at 63-64 (citing, inter 791, 801-02 (4th Cir.), cert, dismissed, 404 U.S.
alia, Paxton v. Union National Bank, 688 F.2d 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971).
552, 563 (8th Cir.1982), cert, denied, 460 U.S.
1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983); 34. In light of our conclusion in this respect, we
Alexander v. Aero Lodge No. 735, Intern. Ass'n, do not have to reach, nor do we, the specific
565 F.2d 1364, 1372 (6th Cir. 1977), cert, denied, question addressed in decisions from other
436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 Courts of Appeals, such as Lorillard.
(1978); Robinson v. Lorillard Corp., 444 F.2d
534

Cite as 740 F.2d 1071 (1984)
in an order dated June 6, 1980. J.R.E. 162. cember 1980 ruling is thus barred by the
This denial was based on the district principles of waiver and law of the case.
court's understanding that Laffey I had
resolved this issue. See District Court's IV. THE LIMITATION PERIOD ON TITLE
Order of February 19, 1981, denying recon- VII BACKPAY
sideration of its June 6, 1980 order. J.A. [15] In the 1972 amendments to Title
172, 173. VII, Congress limited back-pay liability to
NWA challenges the June 6, 1980 order, no more than two years prior to the filing
arguing that the district court misunder- of charges with the Equal Employment Op-
stood Laffey I. Downplaying the fact that portunity Commission. Laffey I held that
Laffey 1 dealt explicitly only with terminat- the 1972 amendments did not apply to this
case and directed the district court on re-
ed stewardesses, NWA claims that a truer
mand to "determine the local statute of
indication of that court's mandate was its
limitations most appropriate to this case,"
recognition that "only those employees
567 F.2d at 469. On remand, the district
who could have filed charges with the Com- court referred to District of Columbia law,
mission individually when the class filing noted that the District has no borrowing
was made are properly members of the statute and generally applies its own stat-
litigating class." 567 F.2d at 472. This ute of limitations as a "procedural" pre-
language, NWA argues, empowered the scription, and determined that the most rel-
district court to consider its claims that evant statutes are the D.C. Minimum Wage
certain stewardesses, other than those in Law, D.C.Code Ann. 36-416 (1973) (now
the terminated group expressly dealt with codified at D.C.Code Ann. 36-216 (1981)),
in Laffey I, had no viable claims allowing and the general statute of limitations, D.C.
their inclusion in the class. NWA traces Code Ann. 12-301 (1981). See Laffey v.
the district court's failure to so interpret Northwest Airlines, Inc., 481 F.Supp. 199,
the mandate of Laffey / to its overly 200-01 (D.D.C.1979). Both of these laws
"wooden reliance" on the "phrase 'left the provide for a three-year limitations period.
Company's employ ' " NWA Brief at
61. Were we writing on a clean slate, we
might well decide that the two-year rule
[14] Without reaching the merits of specified in the 1972 Title VII amendments
NWA's arguments against inclusion of the should apply, if not directly, then at least
two disputed groups of stewardesses, we by analogy, as the best indicator of the
hold that the district court correctly con- federal legislators' view of the appropriate
strued the Laffey I mandate. NWA had back-pay liability limitation period. We are
the opportunity in Laffey I to raise the reluctant, however, to depart from the law
issue of the status of these two additional of the case on the nonretroactivity of Title
groups of class members, just as it had the VII's current two-year limitation. Never-
opportunity to raise the issue of the termi- theless, we modify the district court's deci-
nated stewardesses. NWA simply and in- sion specifying a three-year period bor-
disputably failed to do so. Its failure to rowed from the District of Columbia's mini-
raise these arguments constituted a waiver mum wage law or general statute of limita-
of them. See supra at pp. 1089-1090. tions. In the unique circumstances
Moreover, as to the law of the case, in presented here, we hold that the time
Laffey I the court "affirm[ed](" 567 F.2d at frame most appropriately borrowed is Min-
478, the award of backpay to all class mem- nesota's two-year limitation on "the recov-
bers except those "whose connection with ery of wages ... under any federal or state
[NWA] was dissolved more than 90 days law." Minn.Stat.Ann. 541.07(5) (West
before the class filing with the Commis- Supp. 1982-1983).
sion." Id. at 476 (emphasis added). Absent a federal limitation period which
NWA's attack on the district court's De- we can apply, we generally borrow the
535
limitation period of the state in which the stated in Miller v. Miami Prefabricators,
federal trial court sits. If a traditional Inc., 438 F.Supp. 176, 181 (S.D.Fla.1977):
statute of limitations were needed here, we When measured against the broad
would "be required to employ a District of "make whole" purposes of Title VII it
Columbia statute of limitations. See Ernst becomes evident that the two year cap on
& Ernst v. Hochfelder, 425 U.S. 185, 210 n. back pay contained in 42 U.S.C. 2000e-
29, 96 S.Ct. 1375, 1389 n. 29, 47 L.Ed.2d 668 5(g) is not a statute of limitations. Rath-
(1976); Forrestal Village, Inc. v. Graham, er, that provision was inserted by Con-
551 F.2d 411, 413 (D.C.Cir.1977). However, gress in an attempt to limit the back pay
what is at issue is not a statute of limita- which could be recovered from employers
tions in the usual sense but rather a sub- who have been engaged in discrimination
stantive cap on the amount of backpay that for many years.
may be awarded. As a limit on liability rather than a stat-
Having refused to apply the federal two- ute of limitations, section 2000e-5(g) is a
year limit, Laffey I stated: substantive rather than a procedural meas-
[T]he problem at this point is simply that ure. Where there is no similar back-pay
of fashioning a federal common law peri- cap in state law, a state statute of limita-
tions will be used for federal purposes,
od of limitations. Most often this is ef-
here a substantive purpose. Where the
fected by adopting the period prescribed
issue is substantive, the District of Colum-
by the most analogous state statute bia does not automatically apply its own
[A]doption of the state limitation period prescription. See In re Air Crash Disas-
is proscribed only when it would create ter at Washington, D. C, 559 F.Supp. 333,
important conflicts with the federal poli- 341-42 (D.D.C.1983); Williams v. Wil-
cy underlying the cause of action or liams, 390 A.2d 4, 5 (D.C.1978).
when it would amount to a discriminato-
ry restriction of a federal right of action. In this case, we have been pointed to no
jurisdictions other than Minnesota and the
Neither of those conditions exists here.
District of Columbia that have a relevant
567 F.2d at 468-69 (footnotes omitted). connection to the parties and actions in-
The current two-year federal statutory cap volved in this litigation.35 The District of
on recovery, 42 U.S.C. 2000e-5(g), for Columbia is obviously a jurisdiction whose
which Laffey I wished to find a "federal laws should be examined. But of the two
common law" substitute, is not addressed, conceivably applicable D.C. statutes, nei-
as a statute of limitations would be, to the ther manifests a policy closely analogous to
timeliness of the filing of charges or the the one at stake here. The Minimum Wage
institution of a lawsuit. Timeliness of fil- Law, D.C.Code Ann. 36-203, on which
ing with the Commission is governed by the district court relied, is not designed to
section 2000e-5(e) and that of the institu- prevent sex discrimination but rather to
tion of a lawsuit by section 2000e-5(f)(l). establish minimum hourly wages, maxi-
But when those provisions are satisfied by mum hours, and overtime compensation
timely filings, and when a plaintiff has rates. That statute's three-year limit on
made his substantive case, section 2000e- minimum wage claims, D.C.Code Ann.
5(g) comes into play for the first time to 36-216, seeks merely to prevent the pros-
define the maximum remedy. As the court ecution of stale claimsa policy not impli-
35. Appellees contend that neither state has a awarded back to the effective date of Title VII,
governmental interest or statutory policy that is as appellees here then contended. Instead, Laf-
relevant because this is a federal claim that no fey I found that federal policy required that a
state has any legitimate interest in regulating relevant state limitation should be found The
substantively. But at the time of Laffey I there state does not regulate the federal claims; the
was a federal limit on liability and this court, federal common law does, and it does so by
though it found the federal limit itself inapplica- constituting itself from analogous state law
ble, did not decide that backpay should be
536

Cite as 740 F.2d 1071 (1984)
cated here. Likewise, the D.C. three-year The Minnesota Supreme Court has decid-
"catch-all" statute of limitations, D.C.Code ed that Minn.Stat.Ann. 541.07(5) (West
Ann. 12-301, on which the district court Supp. 1982-1983) is the statute of limita-
also relied, serves to limit the bringing of tions that should govern claims of discrimi-
stale claims and evinces no particular internation brought under the Human Rights
est in preventing sex discrimination. Act. See Brotherhood of Railway &
Steamship Clerks, 303 Minn, at 195-96,
Minnesota law is more to the point and 229 N.W.2d at 13-14. Section 541.07(5)
there is no doubt that the parties and ac- prescribes a two-year limitations period
tions at issue touch and concern that state. "for the recovery of wages or overtime or
Appellant is a Minnesota corporation; ap- damages, fees or penalties accruing .under
pellant's headquarters are in Minnesota; any federal or state law respecting the
the wage scales challenged in this case payment of wages or overtime or damages,
were all set by collective bargaining agree- fees or penalties " We find that the
ments negotiated and signed in Minnesota; limitations period for recovery of backpay
the employment relationship of every mem- should be established by recourse to that
ber of the appellee class was established in statute. Accordingly, the recovery period
Minnesota and was controlled by decisions is two years.
taken there; all interviews and hiring oc-
curred in Minnesota; the employment con-
V. THE LIQUIDATED DAMAGES AWARD
tract of each appellee class member stated
that it was to be "viewed as a Minnesota The district court's 1974 Remedial Order,
contract of employment governed by the 374 F.Supp. at 1390, disallowed liquidated
laws of that state in every respect"; and, damages under the Equal Pay Act. On
when this case was certified as a class appeal in Laffey I, we "remand[ed] the
action, notice was directed to 2,634 stew- matter of liquidated damages in toto for
reconsideration by the District Court." 567
ardesses, of whom only ten lived in the
F.2d at 466 n. 279. With our Laffey I
District of Columbia while 1,694 lived in instructions as its guide, the district court
Minnesota. See Declaration of James A. permitted further discovery and ultimately
Abbott, R. 61 at Ml 2-4. found that the relevant facts mandated a
In contrast to the District of Columbia, liquidated damages award. Laffey v.
Minnesota does have a statute closely anal- Northwest Airlines, Inc., 2A Empl.Prac.
ogous to Title VII, i.e., the Minnesota Hu- Dec. (CCH) H 31,384 (D.D.C. Nov. 21, 1980)
man Rights Act, Minn.Stat.Ann. 363.01 [hereafter, Nov. 21, 1980, Decision].
(West 1983). Like Title VII, the Minnesota NWA contends that the district court erred
Human Rights Act extends its protection in finding liquidated damages mandatory
beyond sex-based classes to other groups and in calculating the amount of the award.
and prohibits discrimination in aspects of We reject both contentions as insubstantial
employment besides compensation. The and sustain the district court's liquidated
damages adjudication in all respects.
Minnesota Equal Pay Act that appellant
would have us adopt merely prohibits wage A. Plaintiffs Entitlement to Liquidated
differentials and protects only sex-based Damages
groups. Minn.Stat.Ann. 181.67 (West As Laffey I recounted, 567 F.2d at 463-
1983). Significantly, the Minnesota Su- 65, the Fair Labor Standards Act, which
preme Court, in discussing the Minnesota serves as the procedural and remedial
Human Rights Act, has applied case law framework for Equal Pay Act claims, mi--
interpreting Title VII. See Brotherhood of tially provided that prevailing employees
Railway & Steamship Clerks v. State, 303 were entitled to an automatic award of
Minn. 178, 188-91. 229 N.W.2d 3, 9-11 liquidated damages in an amount equal to
(1975). unpaid wages. Congress amended the
537
statute in 1947 36 to commit to judicial dis- On review, we held "the reasons given
cretion disallowance or limitation of liqui- by the District Court for disallowing liqui-
dated damages if the employer satisfies the dated damages ... legal[ly] inadequa[te]."
court' tKat he acted "in good faith" and Laffey I, 567 F.2d at 465. "The good faith
with "reasonable grounds for believing of which the Act speaks," we restated, "is
that his act or omission was [lawful]." 29 'an honest intention to ascertain what the
U.S.C. 260 (1982). Both prior to and ... Act requires and to act in accordance
after this amendment, courts have describ- with it.' " Id. at 464 (quoting Addison v.
ed liquidated damages as serving a com- Huron Stevedoring Corp., 204 F.2d 88, 93
pensatory, not a penal, purpose. See, e.g., (2d Cir.), cert, denied, 346 U.S. 877, 74
Brooklyn Savings Bank v. O'Neil, 324 S.Ct. 120, 98 L.Ed. 384 (1953)). "Good
U.S. 697, 707, 65 S.Ct. 895, 902, 89 L.Ed. faith" must be established affirmatively,
1296 (1945); Thompson v. Sawyer, 678 we observed; it is not enough that "it
appear that the employer probably did not
F.2d 257, 281 (D.C.Cir.1982); Marshall v.
act in bad faith." Laffey I at 465.
Brunner, 668 F.2d 748, 753 (3d Cir.1982);
Usery v. Chef Italia, 540 F.Supp. 587, 591 Four of the five reasons supplied by the
n. 9 (E.D.Pa.1982). district court for finding NWA reasonably
believed it complied with the law related to
Initially, the district court concluded that then traditional industry practice and em-
NWA had acted "in good faith": NWA ployee acquiescence.38 We stated: "That
committed a "willful" violation of the an employer and others in the industry
Equal Pay Act, the court explained, behave broken the law for a long time with-
cause it "was fully aware of [the Act] and out complaints from employees is plainly
adopted a deliberate and knowing course of not the reasonable ground to which the
conduct despite its awareness"; but the statute speaks." Id. (footnote omitted).
evidence did not indicate "an intentional, Further,'we remarked that "the prevalence
bad faith, attempt [by NWA] to evade the of sex-discrimination litigation against the
law." 1974 Remedial Order, 374 F.Supp. airline industry naturally prompts the ques-
at 1390.37 For several reasons, the district tion whether NWA should reasonably have
court, on first examination, also found it known that neither its own tradition, the
"not unreasonable" for NWA to believe industry custom nor the employees' silence
that its purser/stewardess pay differential was a reliable indicium of the demands of
was lawful. Id. the law." Id. (footnotes omitted).39
36. See Laffey I, 567 F.2d at 463-65 & n. 25 does not suffice." Laffey I, 567 F.2d at 466. We
(quoting and discussing section 11 of the Portal indicated that on remand it would be appropri-
to Portal Act of 1947, 29 U.S.C. 260 (1982)). ate for the district court to consider whether
"the absence of precise legal guidelines" was in
37. See also Appellant's [NWA] Combined Reply fact the "condition [that] actually led NWA to
Brief and Brief on Cross-Appeal at 58-59, Laffey believe that it was in compliance with the Equal
I (arguing that to rebut NWA's proof in support Pay Act." Id. The district court did so and
of its alleged good faith, plaintiffs had to point
concluded: "[NWA] was in the position to study
to "direct evidence of bad faith or deliberate
and know the nature of the work being per-
[Equal Pay Act] wrong, or that sex was con-
sciously the rate basis, or that employer was formed by its employees. For it to erroneously
trying to evade the [Equal Pay Act]"). conclude that the jobs were different was not a
consequence of legal uncertainty." Nov 21,
38. The fifth factor cited by the district court was 1980, Decision, 24 Empl.Prac.Dec. at 18,286 (em-
"the absence of any clear legal precedent or phasis in original).
guideline precisely in point." 1974 Remedial
Order, 374 F.Supp. at 1390. We recognized that 39. Cf. Laffey 1, 567 F.2d at 466 n. 276 (citing
this factor was indeed relevant to a determina-
Albemarle Paper Co. v. Moody, 422 U.S. 405, 422,
tion whether an employer had a good faith,
reasonably grounded (but erroneous) belief that 95 S.Ct. 2362, 2374, 45 L.Ed.2d 280 (1975) (Title
his conduct was lawful. But "legal uncertain- VII decision) for proposition that maintenance
ty," we added, "to assist the employer's defense, of practice of "highly questionable legality" con-
must pervade and markedly influence the em- stitutes bad faith).
ployer's belief; merely that the law is uncertain
538

Cite as 740 F.2d 1071 (1984)
In Laffey I, we recognized that "[a]ny [16J We summarize here the principal
assessment of an employer's good faith or points made by the district court, with am-
grounds for his belief in the legal propriety ple record support, in explanation of its
of his conduct is necessarily a finding of ultimate finding that NWA did not have "a
fact, to be disturbed on appeal only if clear- reasonable foundation for a positive belief
ly erroneous." 567 F.2d at 464 (footnote that in fact its policies compl[ied] with the
omitted). We found, however, that the dis- law." Nov. 21, 1980, Decision, 24 Empl.
trict court had erroneously declared and Prac.Dec. at 18,286 (emphasis in original).
applied the governing law: it had misper- First, NWA officials concluded that the
ceived the meaning of both "good faith" jobs of purser and stewardess were in fact
(by apparently accepting the absence of different "without consulting the in-flight
bad faith as sufficient) and "reasonable supervisors responsible for knowing the
grounds" (by considering several factors duties of each, without commissioning a
irrelevant to that determination). The study of the jobs (as they did nine years
"clearly erroneous" rule, see FED R.CIV P. later), and without scrutinizing the jobs for
52(a), therefore did not stand in the way of differences in duties." Id.40 Next,
a remand. NWA's alleged belief that "wages estab-
On this appeal, by contrast, we find no lished through collective bargaining" were
legal infirmity in the district court's assess- invulnerable to Equal Pay Act challenge,
ment. Instead, we are satisfied that the despite the language of the Act and the
district court closely followed the guidance Wage-Hour Administrator's published in-
supplied in Laffey I, which constitutes the terpretation,41 could not rest on "an honest
law of the case and of this circuit. Ap- intention to ascertain what the Act re-
proaching the district court's fact findings quired." Id.
with appropriate regard to that tribunal's Additionally, NWA could not establish its
function and to the need for finality served "good faith" by reason of its termination of
by FEDR.CIVP. 52(a), we have no occasion "other discriminatory personnel practices
to disturb the liquidated damages award. after considerable delay and an EEOC find-
40. NWA refers to its "thorough" internal review sonnel Department); id. at 897 (trial testimony
of the possible application of the Equal Pay Act of Robert Ebert) (he had only general, not de-
to the Company's personnel practices as indica- tailed knowledge of purser and stewardess
tive of its "good faith" and "reasonable duties).
grounds." See NWA Brief at 72; see also Nov.
21, 1980, Decision, 24 Empl.Prac.Dec. at 18,285- 41. The district court quoted and added empha-
86 (summarizing NWA's contentions). This re- sis to the United States Department of Labor,
view consisted of conversations shortly after the Wage-Hour Administrator, Interpretive Bulletin
Act's passage among Robert Ebert, Vice Presi- on Equal Pay for Equal Work 800.106 (Apr.
dent for Personnel, James Abbott, Labor Rela- 25, 1964), which states:
tions Counsel (Personnel Department), and Ho-
[W]here equal work is being performed with-
mer Kinney, Director of Labor Relations (Per-
in the meaning of the statute, a wage rate
sonnel Department). See 12/20/78 Deposition
differential which exists between male and
of Homer R. Kinney at 4-7, reprinted in Supple-
female employees cannot be justified on the
mental Record Excerpts (S.R.E.), Vol. I;
ground that it is a result of negotiation by the
12/19/78 Deposition of James A. Abbott at 56,
union with the employer, for negotiation of
reprinted,in S.R.E., Vol. I. No participant as-
such a discriminatory wage differential is pro-
serted that he in fact recalled discussing the
hibited under the terms of the equal pay
differences in duties between pursers and stew-
amendment.
ardesses. See 12/20/78 Deposition of Homer
R. Kinney at 4-7, 42-43; 12/19/78 Deposition Reprinted in 29 C.F.R. 800.106 (1983). The
of James A. Abbott at 56-57, 62-63, 66-67. Nor district court appropriately rejected NWA's vari-
does it appear that the officials in question were ous attempts to cloud this clear statement. See
best-positioned to conduct a close review of the Nov. 21, 1980, Decision, 24 Empl.Prac.Dec. at
work of pursers and stewardesses. See Laffey I 18,286 (citing Clifton D. Mayhew, Inc. v.' Wirtz.
Joint Appendix at 723-24, 734-36 (trial testimo- 413 F.2d 658, 663 (4th Cir.1969)) ("If [employer]
ny of Chester L. Stewart) (chain of direct super- did not know, it was because he did not look, or
vision of pursers and stewardesses ran through looking, did not see, or want to see what was so
Department of Transportation Services, not Per- plainly there.").
539
ing of probable violations." Id. (emphasis B. The Liquidated Damages Calculation

in original). Further, NWA gained no mile- NWA next argues that, even if the dis-
age from its "purported reliance on an trict court properly determined that the
EEOG statement that the duties of the statute entitled the Equal Pay Act plain-
purser and stewardess were different," for tiffs to liquidated damages, the years 1974
the vaunted EEOC statement "merely re- and 1975 should have been left out of the
cited [NWA's] own job descriptions." Id. calculation. These are the relevant facts.
at 18,287. Finally, NWA's actions ''after NWA's contract with the cabin attendants'
the lawsuit was filed ... fail[ed] to satisfy union expired at the end of 1973. Negotia-
its burden of showing an honest intention tions for a new contract took place in 1974
to comply [with the law] prior to com- and 1975. During that two-year interval,
mencement of litigation." Id. (emphasis pursers and stewardesses were paid under
in original).42 the terms of the expired contract, which
accorded higher pay to pursers. The new
In Laffey I, we cautioned the district contract, signed December 20, 1975, equal-
court that the employer bore a " 'substan- ized purser and stewardess wage rates **
tial burden' of proving that his failure to and provided for a retroactive adjustment
comply was in good faith and also was covering the negotiation period.
predicated on reasonable grounds for a be-
lief that he was in compliance." 567 F.2d [17] Thus, in early 1976, the steward-
464-65 (quoting in part Rothman v. Pub- esses received "retro-pay" for the differ-
licker Indus., Inc., 201 F.2d 618, 620 (3d ence between wages paid pursers and stew-
Cir.1953)) (footnote omitted). "If the em- ardesses in 1974 and 1975. The parties
ployer cannot convince the court in these agreed on subtraction of this retro-pay
respects," we emphasized, "an award of from NWA's basic back-pay liability.
liquidated damages remains mandatory." NWA unsuccessfully sought credit for the
Id. at 465 (footnote omitted). The district retro-pay against liquidated damages as
court, for solid, plainly stated reasons, was well, and now challenges the district
unconvinced that NWA acted with the req- court's refusal to subtract the retro-pay
uisite "good faith" and "reasonable from the liquidated damages award. See
grounds." 43 We uphold that determination Laffey v. Northwest Airlines, Inc., 582
as free from any clear error. F.Supp. 280 at 281, 282-284 (D.D.C.1982)
42. Nor, in light of the record as a whole, did NWA now argues for rigid separation of
NWA's conduct after the commencement of liti- "good faith" from "reasonable grounds" and in-
gation impel any finding that "good faith" and correctly reads our Laffey I opinion to leave
"reasonable grounds" supported NWA's 1970- untouched the district court's original finding of
1976 retention of the sex-based pay differential. good faith. See NWA Brief at 20, 72 n.*. We
See infra pp. 1098-1099 (differential main- note, however, that NWA itself has exhibited
tained for two years following district court less than perfect consistency in deciding wheth-
declaration that it violated the Equal Pay Act). er to characterize a factor as relevant to "good
faith" or to "reasonable grounds." Compare Ap-
43. We have described the "good faith" inquiry
did the employer honestly intend to ascertain pellant's [NWA] Combined Reply Brief and
and act in accordance with Equal Pay Act re- Brief on Cross-Appeal at 54-55, Laffey I (arguing
quirementsas "subjective," and the "reason- that collective bargaining history and steward-
able grounds" inquiry as "objective." Laffey I, ess acquiescence demonstrated NWA acted in
567 F.2d at 464. If theoretically discrete, the good faith), with NWA Brief at 72 n.* (arguing
two inquiries are not so readily compartmental- that, when Laffey I rejected these factors, the
ized in practical application. Inquiry into the court addressed only "reasonableness," not
subjective state of mind of the employer, if we "good faith").
attribute rationality to that employer, is likely to
be influenced by the fact trier's perception 44. This contract, effective January 31, 1976, and
whether a reasonable person, diligently seeking applicable to the years 1974-1977, merged all
to conform his or her conduct to legal require- cabin attendants in;o a single classification.
ments, might have acted as the employer in fact See NWA Brief at 11 n.*.
did.
540

Cite as 740 F.2d 1071 (1984)
[hereafter, Oct. 25, 1982, Mem. Op.], re- 1975 from the liquidated damages calcula-
printed in J.R.E. 180, 183-89. tion. The wages involved in fact were not
received until two years after they were
In opposing credit for the retro-pay earned. That reality, in the circumstances
against liquidated damages, plaintiffs re- here presented, is dispositive of plaintiffs'
lied on the district court's November 1973 statutory entitlement to liquidated dam-
Findings, 366 F.Supp. at 789, holding that ages.
the purser/stewardess pay differential vio-
lated the Equal Pay Act.45 Retroactive [18] In rejecting NWA's "relate back"
adjustment over two years later, plaintiffs argument, the district court stressed this
argued and the district court agreed, did central consideration: "liquidated damages
not relieve NWA of its liquidated damages are not punitive"; they are intended to
liability for the years 1974 and 1975, a compensate employees for a payment delay
period during which pursers received, but "which might result in damages too ob-
stewardesses continued to await, the high- scure and difficult of proof" to be re-
er pay. NWA, on the other hand, main- dressed by any other means. Oct. 25,
tained that the retro-pay stewardesses re- 1982, Mem.0p. at 282-283, reprinted in
ceived in 1976 should be treated for all J.R.E. 185-86 (quoting language appearing
Equal Pay Act remedial purposes as if it
in Overnight Motor Transportation Co. v.
had been paid in 1974 and 1975. NWA
Missel, 316 U.S. 572, 583-84, 62 S.Ct. 1216,
characterized payments under 1973 con-
1222-23, 86 L.Ed. 1682 (1942)); see cases
tract as merely "on account"; lump-sum
adjustments retroactively establishing ac- cited supra 1096. As its principal ground
tual wage rates for past years, NWA of objection to the district court's ruling,46
stressed, were a "standard feature of labor NWA asserts that section six of the Rail-
agreements in the airline industry." See way Labor Act, 45 U.S.C. 156 (1982),
Oct. 25, 1982, Mem. Op. at 282, reprinted obligated it to maintain the status quo as to
in J.R.E. 185 (quoting NWA); NWA Brief all conditions of employment, including
at 22, 82. wages, during the two-year pendency of
contract negotiations.47 That Act, we are
We conclude that the district court ap- confident, does not stop an employer from
propriately refused to "relate back" the immediately equalizing wages upward in
retro-pay, and thereby exclude 1974 and accordance with the judicial determination
45. The district court's April 1974 Remedial Or- recovery Congress specified for Equal Pay Act
der, 374 F.Supp. at 1385, provided that backpay violations.
would continue to accrue until NWA equalized We further note our agreement with the dis-
purser and stewardess wages. This Order was trict court's remarks on a Fair Labor Standards
stayed pending NWA's appeal, petition for re- Act regulation cited by NWA, 29 C.F.R. 778.-
hearing, and petition for certioran. See supra 303 (1983) (employer who grants retroactive
p. 1075. pay increase must also increase overtime pay
retroactively). This regulation serves to insure
46. The district court correctly observed, see Oct.
employees' receipt of overtime compensation on
25, 1982, Mem.Op. at 282-283, reprinted in
J.R.E. 185-86, that the right to liquidated dam- retroactive pay increases; it is not addressed to
ages is nonwaivable by employees, see Schulte v. situations involving an "underlying unlawful
Gangi, 328 U.S. 108, 114, 66 S.Ct. 925, 928, 90 differential in wages" or any other delinquency
L.Ed. 1114 (1946); Brooklyn Sav. Bank v. O'Neil, in meeting statutory obligations. See Oct. 25,
324 U.S. 697, 704. 65 S.Ct. 895, 900, 89 L.Ed. 1982, Mem.Op. at 283-284, reprinted in J.R.E.
1296 (1945), and that a union, in collective bar- 187-88.
gaining, cannot surrender rights secured by the
Equal Pay Act. See 29 U.S.C. 206(d)(2) 47. The provision on which NWA relies states
(1982); EEOC v. AT & T Co., 365 F.Supp. 1105, that "[i]n every case where [the negotiation pro-"
1128 (E.D.Pa.1973), aff'd in relevant part, 506 cedures of the Act have come into play], rates of
F.2d 735 (3d Cir.1974) (without discussion of pay, rules, or working conditions shall not be
this point). Thus airline industry collective bar- altered by the carrier [until the Act's negotiation
gaining patterns, see supra p. 1099, provide no procedures have run their course]." 45 U.S.C.
insulation to NWA against the full measure of 156 (1982).
541
that an existing wage disparity violates the by paying the liquidated damages ordered
Equal Pay Act.48 by the district court.
The Railway Labor Act provision NWA
VI. ISSUES RAISED BY LAFFEY AS
cites fosters bargaining over disputes to
CROSS-APPELLANT
avert the disruption of commerce strikes
and lockouts occasion. See, e.g., Detroit & A. Pre-Act Longevity
Toledo Shore Line Railroad Co. v. United [19] In calculating the amount of back-
Transportation Union, 396 U.S. 142, 148- pay due for NWA's post-Act wage viola-
50, 90 S.Ct. 294, 298-299, 24 L.Ed.2d 325 tions, the district court held that the wom-
(1969). But the Equal Pay Act requires en should receive credit only for steward-
equalizing the wages of the lower paid sex ess service performed subsequent to the
up to the level of the higher paid sex. See, Act under which they were recovering.
e.g., Corning Glass Works v. Brennan, The district court reasoned that the Su-
417 U.S. 188, 206-07, 94 S.Ct. 2223, 2233- preme Court's decisions in United Air
2234, 41 L.Ed.2d 1 (1974). A court determi- Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct.
nation of an Equal Pay Act violation leaves 1885, 52 L.Ed.2d 571 (1977), and Interna-
nothing for the employer and union to bar- tional Brotherhood of Teamsters v. Unit-
gain about. Just as the National Labor ed States, 431 U.S. 324, 97 S.Ct. 1843, 52
Relations Act's prohibition against an em- L.Ed.2d 396 (1977), precluded crediting the
ployer's unilateral change in wages under women with pre-Act longevity. Because
negotiation49 gives way to commands for we find that the district court improperly
an employer's compliance with other applied these decisions, we reverse.
laws,50 so the analogous provision of the
Railway Labor Act erects no obstacle, on The back-pay recovery period covers the
the facts here presented, to an employer's years 1967 through 1976. During that
immediate payment of equal wages to men time NWA had a pay ladder for pursers
and women performing equal work. such that salary rose with increased years
of service or "longevity." Under this poli-
Stewardesses did not receive until 1976 cy a man hired as a purser in 1957 would
pay made to pursers in 1974 and 1975; have accumulated ten years' longevity by
NWA must now compensate for the with- 1967 and would have been paid accordingly.
holding period, during which it remained The issue facing the district court was
out of compliance with the Equal Pay Act, whether, for purposes of computing back-
48. We note in this context the specific command 423 U.S. 1017, 96 S.Ct. 451, 46 L.Ed.2d 388
directed to unions in the Equal Pay Act: (1975), 423 U.S. 1073, 96 S.Ct. 855, 47 L.Ed.2d
No labor organization, or its agents, repre- 82 (1976).
senting employees of an employer having em-
ployees subject to any provisions of this sec- 49. See, e.g., NLRB v. Katz. 369 U.S. 736, 743,
tion shall cause or attempt to cause such an 745-47, 82 S.Ct. 1107, 1111, 1112-14, 8 L.Ed.2d
employer to discriminate against an employee 230 (1962) (employer's unilateral change in
in violation of [the Equal Pay Act]. wages under negotiation violates 8(a)(5) of
29 U.S.C. 206(d)(2) (1982). See also, e.g., Boys the National Labor Relations Act).
Markets, Inc. v. Retail Clerks Union Local 770,
398 U.S. 235, 249-53, 90 S.Ct. 1583, 1591-1594, 50. See Standard Candy Co., 147 NLRB 1070,
26 L.Ed.2d 199 (1970) (to advance objectives of 1073 (1964) (ALJ opinion adopted by Board)
other legislation, court may sanction exception (unilateral change in wages to comply with Fair
to Norris LaGuardia Act that does not under- Labor Standards Act does not violate 8(a)(5)
mine that Act's purposes); Brotherhood of Rail- of the National Labor Relations Act); Southern
road Trainmen v. Chicago River & Indiana R.R., Transport, Inc., 145 NLRB 615, 617-18 (1963)
353 U.S. 30, 39-42, 77 S.Ct. 635, 639-641, 1 (Board opinion) (same); cf. EEOC v. AT & T
L.Ed.2d 622 (1957) (same); Brotherhood of Rail- Co., 365 F.Supp. 1105, 1129 (E.D.Pa.1973) (uni-
way, Airline & Steamship Clerks v. REA Express, lateral changes in provisions of currently bind-
Inc., 523 F.2d 164, 168-69 (2d Cir.1975) (Rail- ing contract to conform with Title VII or Equal
way Labor Act's unilateral wage change prohibi- Pay Act do not violate National Labor Relations
tion does not block trustee's unilateral change Act), aff'd in relevant part, 506 F.2d 735 (3d Cir.
made to keep bankrupt operating), cert, denied, 1974) (without discussion of this point).
542

Cite as 740 FJd 1071 (1984)
pay, a woman who had also been hired in merit system ... provided that such differ-
1957 as a cabin attendant and who had ences are not the result of an intention to
worked continuously as such until 1967 discriminate because of race, color, reli-
should be credited with the same longevity gion, sex, or national origin " Section
in determining her 1967 salary. Under the 703(h), 42 U.S.C. 2000e-2(h) (1976).
district court's holding, the woman in this These decisions do not apply to cases, such
example would be entitled only to the pay as the present one, where there is no alle-
of a purser with three years' longevity if gation that a seniority system violates Title
she were recovering under the Equal Pay VII, but only a claim for an appropriate
Act. She would be entitled only to the pay remedy.51 The distinction between a reme-
received by a purser with two years' lon- dy issue and a violation issue under Title
gevity if she were recovering under Title VII was explained in Franks v. Bowman
VII. Transportation Co., 424 U.S. 747, 96 S.Ct.
We think that a woman hired in 1957 1251, 47 L.Ed.2d 444 (1976), and repeated in
should today be credited with the same United Air Lines, Inc. v. Evans, 431 U.S.
longevity as a man hired in that year. This at 559, 97 S.Ct. at 1889-1890. In Evans
does not involve finding that discrimination the Court stated:
prior to the passage of the Act was some- The difference between a remedy issue
how illegal. The stewardesses claim no and a violation issue is highlighted by the
damages for pre-Act pay differentials, nor analysis of 703(h) of Title VII in
could they. Their claim is that their cur- Franks. As we held in that case, by its
rent status be the same as that of men who terms that section does not bar the
have the same job characteristics, including award of retroactive seniority after a
job longevity. That claim of equal treat- violation has been proved. Rather,
ment seems to us required by the law. 703(h) "delineates which employment
Indeed, the only case authority we have practices are illegal and thereby prohibit-
found dealing expressly with this subject ed and which are not." 424 U.S. at 758
holds squarely that a back-pay award [96 S.Ct. at 1261].
should take into account "the length of 431 U.S. at 559, 97 S.Ct. at 1889-1890 (foot-
service of the employees," including years note omitted) (emphasis added). Clearly,
of service prior to the effective date of section 703(h) does not preclude the credit-
Title VII. Sears v. Atchison, T. & S.F. ing of retroactive pre-Act longevity in the
Ry., 645 F.2d 1365, 1378 (10th Cir.1981), present case. Indeed, Franks v. Bowman
cert, denied, 456 U.S. 964, 102 S.Ct. 2045, Transportation highlights this point by
72 L.Ed.2d 490 (1982). stating:
United Air Lines, Inc. v. Evans and There is no indication in the legislative
Teamsters v. United States are not to the materials that 703(h) was intended to
contrary. In these cases the Supreme modify or restrict relief otherwise appro-
Court held that bonafi.de seniority systems priate once an illegal discriminatory prac-
do not violate Title VII even where they tice occurring after the effective date of
perpetuate the effects of prior discrimina- the Act is proved
tion. The Court based its decisions on sec- 424 U.S. at 761-62, 96 S.Ct. at 1262-1263.
tion 703(h) of that Act, which provides that Having demonstrated that the district
"it shall not be an unlawful employment court's holding was not required by Evans
practice for an employer to apply different and Teamsters, we turn to the affirmative
standards of compensation, or different reasons for according pre-Act longevity.
terms, conditions, or privileges of employ- To deny women longevity credit for their
ment pursuant to a bona fide seniority or pre-Act service, when men were given such
51. Moreover, the district court did not hold, as such a conclusion, there is no basis whatever
appellant argues, that Northwest's longevity sys- for application of the Court's decisions in Team-
tem was a bona fide seniority system. Absent sters and Evans.
543
credit for doing what the court has held to try of final judgment on November 30
be the same work, would "differentiat[e] 1982.
between similarly situated males and fe- Following the decision in Laffey II, plain-
males on the basis of sex." Evans, 431 tiffs moved for a determination of the pre-
U.S. at 558, 97 S.Ct. at 1889. If NWA judgment interest that should apply to this
unilaterally computed the backpay in this additional period. Plaintiffs noted that in-
way, its action would violate Title VII; a terest rates generally had risen greatly af-
fortiori, such a method of calculation is not ter 1974 and recommended that the rate for
permissible as part of a judicial remedy. each year of the 1974-82 period be 90% of
Moreover, such a limited remedy would run the average prime rate for that year, com-
counter to the "make whole" purpose of pounded quarterly. At the hearing on
Title VII. Albemarle Paper Co. v. Moody, plaintiffs' motion, the district court con-
422 U.S. 405, 419, 421, 95 S.Ct. 2362, 2372, cluded that its prior ruling should not be
2373, 45 L.Ed.2d 280 (1975). The Supreme revised. We affirm.
Court has stated that Congress' purpose in
vesting discretionary powers in the courts We are unpersuaded by plaintiffs' argu-
to provide relief under Title VII was to ment that the district court did not make a
"make possible the 'fashion[ing] [of] the decision as to the rate of interest that
most complete relief possible.'" Albe- should be awarded from 1974 to 1982. In
marle Paper Co., 422 U.S. at 421, 95 S.Ct. rejecting plaintiffs' contention, the district
at 2373 (quoting section-by-section analysis judge stated that he had "determined the
accompanying Conference Committee Re- interest to be awarded without regard to
port on the Equal Employment Opportunity the length of the pre-judgment period." R.
Act of 1972). We therefore reverse the 120; Laffey v. Northwest Airlines, Inc., 29
district court's ruling on this issue and Empl.Prac.Dec. (CCH) 25,330, 25,332
instruct the court to credit plaintiffs' pre-(D.D.C. Oct. 6, 1981). Moreover, the ex-
Act longevity in calculating backpay for press terms of the 1974 order set no limit
the relevant, post-Act time periods. on the length of the pre-judgment period.
B. Interest We stress that although the 1974 judgment
was ultimately declared non-final, we enter-
1. Rate of pre-judgment interest for tained in Laffey I all objections to disposi-
the 1974-82 period tive rulings that the parties placed before
[20] In paragraph 19 of its 1974 order, us. See Laffey II, 642 F.2d at 584 n. 49.
the district court made the following ruling We have discussed above the salutary pur-
on pre-judgment interest: poses served by the doctrine of the law of
19. INTERESTWith respect to all mo- the case. According to that doctrine,
nies to be paid under the foregoing provi- a decision on an issue of law made at one
sions of this Order, the Company shall stage of a case becomes a binding prece-
pay six percent interest per annum from dent to be followed in successive stages
the date the violation occurred giving of the same litigation.
rise to said liability through the date IB J. Moore, Moore's Federal Practice
upon which payment is made in accord- 11 0.404[l] (1983). Reconsideration of a pri-
ance with this Order. or decision, unappealed at an earlier stage
1974 Remedial Order, 374 F.Supp. at 1389. although the opportunity to do so was
In 1974, the district court believed that the present, is justified only in a limited num-
judgment it was entering was a final one ber of circumstances:
(R. 7, at 4; R. 115, at 25, 26). The panel in [The law of the case] must be followed in
Laffey II, however, ruled in 1980 that the all subsequent proceedings in the same
1974 order was not a "final judgment," 642 case in the trial court or on a later appeal
F.2d 578, 583-84 (1980). This ruling had in the appellate court, unless the evi-
the effect of extending the prejudgment dence on a subsequent trial was substan-
period from May 20, 1974 through the en- tially different, controlling authority has
544

Cite as 740 F.2d 1071 (1984)
since made a contrary decision of the law gy here, for liquidated damages are not
applicable to such issues, or the decision merely "a substitute for pre-judgment in-
was clearly erroneous and would work a terest" (R. 119, at 2). As defined by this
manifest injustice. court in Thompson v. Sauryer, 678 F.2d
White v. Murtha, 377 F.2d 428, 431-32 (5th 257, 281 (1982), liquidated damages are
Cir.1967). See also Pettway v. American "compensatory, intended to reimburse
Cast Iron Pipe Co., 576 F.2d 1157, 1189-90 workers for intangible lossesdifficult to
(5th Cir.1978), cert, denied, 439 U.S. 1115, prove but nonetheless the very real conse-
99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); Jen- quences of unfair wages." Liquidated
nings v. Patterson, 488 F.2d 436, 441 n. 4 damages differ in amount and, to some
(5th Cir.1974). None of the above criteria extent, in kind from pre-judgment interest.
for reopening the district court's decision Inasmuch as the law of the case did not
obtains here. We therefore affirm the dis- control the question whether post-judgment
trict court's holding that plaintiffs are enti- interest should accrue on liquidated dam-
tled to pre-judgment interest at six percent ages, that issue was and is open for deter-
simple for the 1974-82 period. mination on the merits.
2. Post-judgment interest on liquidat- [22] The federal post-judgment interest
ed damages statute, 28 U.S.C. 1961 (1982), provides,
In 1981 the district court held that the in relevant part:
law of the case precluded it from awarding Interest shall be allowed on any money
post-judgment interest on liquidated dam- judgment in a civil case recovered in
ages. In paragraph 19 of its 1974 order, district court . . . .
the district court noted, it had not awarded This statute has been interpreted to mean
post-judgment interest on pre-judgment inthat
terest. By analogy, it reasoned, that rul- once a judgment is obtained, interest
ing "is fully applicable to liquidated dam- thereon is mandatory without regard to
ages since liquidated damages are a substi- the elements of which that judgment is
tute for pre-judgment interest" (R. 119, at composed.
2). We do not believe that law of the case Perkins v. Standard Oil Co., 487 F.2d 672,
settles this issue. Our evaluation of the 675 (9th Cir. 1973); see R.W.T. v. Dalton,
merits leads us to conclude that plaintiffs 712 F.2d 1225 (8th Cir.1983). The law re-
are entitled to post-judgment interest on quires the awarding of post-judgment inter-
liquidated damages. Consequently, we re- est on all elements of the judgment, includ-
verse. ing liquidated damages. We therefore re-
[21] The district court did not award verse the determination below and hold
liquidated damages until 1980; it thus had that plaintiffs are entitled to post-judgment
no occasion to decide in 1974and it did interest on liquidated damages.
not decide in 1974whether plaintiffs were
entitled to post-judgment interest on liqui- CONCLUSION
dated damages. That question did not For the reasons stated, we instruct the
arise until 1981, following our Laffey I district court on remand to (1) allow back-
decision. Since the district court had not pay under Title VII beginning two years,
previously decided this question, it was not three years, prior to the filing of the
"free to rule thereon as it thought proper." first EEOC charge; (2) credit plaintiffs
Salvoni v. Pilson. 181 F.2d 615, 619 (D.C. with pre-Act longevity in calculating back-
Cir.), cert, denied, 339 U.S. 981, 70 S.Ct. pay due for post-Act service; and (3) allow
1030, 94 L.Ed. 1385 (1950). post-judgment interest on liquidated dam-
The district court's 1974 ruling refusing ages. In all other respects, we affirm the
to award post-judgment interest on pre- district court's dispositions.
judgment interest does not apply by analo- It is so ordered.
545
EMORY v. SF-CRETARY OF NAVY 291

Cite as 819 F.2d 291 (D.C.Clr. 1987)
er retired officer's constitutional cfctir.i that
Emerson EMORY, Appellant, selection boards that considered birr) for
v. promotion discriminated against him on ba-
sis of race; moreover, retired officer's inac-
SECRETARY OF the NAVY. tive status was not bar to district court
No. 85-5685. fashioning some relief if it determined that
United States Court of Appeals, claim was meritorious.
District of Columbia Circuit.
May 19, 1987. Appeal from the United States District
Court for the District of Columbia Civil
Retired officer brought action seeking Action No. 83-02494.
declaratory and injunctive relief for alleged Emerson Emory, pro se.
discrimination that resulted in his nonselec-
Sherman Cohn, Washington, D.C., ap-
tion for promotion to rank of rear admiral
pointed by the Court, was on the brief as
ji United States Naval Reserve. The Unit-
amicus curiae.
ed States District Court for the District of
lolumbia, June L. Green, J., dismissed Joseph E. diGenova, U.S. Atty., Royce C.
complaint for want of subject matter juris- Lamberth, R. Craig Lawrence and Eileen
diction, and retired officer appealed. The M. Houghton, Asst. U.S. Attys., Washing-
Court of Appeals held that: (1) officer's ton, D.C., were on appellee's motion for
Rule 59(e) motion, and thus his notice of summary affirmance.
appeal, were timely, and (2) district court
had jurisdiction to consider retired officer's Before BORK, SILBERMAN and
claim that selection boards that considered GINSBURG, Circuit Judges.
him for promotion discriminated against
Opinion PER CURIAM.
him on basis of race.
Reversed and remanded. ON MOTION FOR SUMMARY
AFFIRMANCE
1. Federal Civil Procedure =2658 PER CURIAM:
Federal Courts =668 Appellant Emerson Emory has appealed
Rule 59(e) motion, which was dated the dismissal of his complaint by the dis-
seven days after district court's judgment trict court. Emory had filed suit seeking
and which was filed within reasonable time declaratory and injunctive relief for alleged
thereafter, was timely, and thus subse- discrimination that resulted in his nonselec-
quent notice of appeal was also timely, tion for promotion to the rank of rear admi-
notwithstanding that date of service ap- ral in the United States Naval Reserve.
peared slightly above certificate of service The district court dismissed the complaint
rather than in text of certificate of service for want of subject matter jurisdiction.
itself. Fed.Rules Civ.Proc.Rule 59(e), 28 We hold that the district court has jurisdic-
U.S.C.A.; F.R.A.P.Rule 4(a)(4), 28 U.S.C.A. tion to consider Emory's claims. Accord-
2. Armed Services <=7 ingly, we reverse.
Although district court lacked authori- Emory was an ensign in the Medical
ty to order retired navy officer promoted Corps of the United States Naval Reserves
retroactively to rank he sought, and al- beginning in 1949. He remained on active
though operation of military is vested in duty as a reserve officer from that time
Congress and executive branch, district until his voluntary retirement in 1980.' In
court nonetheless had jurisdiction to consid- the interim, he was promoted in the normal
' Emory's voluntary retirement may have been prison. Had Emory not voluntarily retired, he
induced, in part, by his conviction and sentence would have been liable to an involuntary sepa-
in a federal district court to twelve years in ration proceeding as a result of hi* conviction.
546

sequence to the rank of captain, obtaining that the case was nonjustieiable because
that status in 1972. Thereafter he was is not capable of resolution through .
considered, but not selected, for promotion judicial process without interference i;.
to the rank of rear admiral by selection areas reserved to other branches
boards meeting in January of 1977, 1978, government " The court reasoned that >
1979, and in October of 1979. During the cause promotion undo,- 1C U.S.C. cD
period 1977-1979, Emory was eligible for U982) - is a matter reserved to the Itgis,
promotion to the rank of rear admiral. tive and executive branches of gcverr.m-
Emory was not, however, in what is known the court did not have the power to Greta
as the "primary promotion zone." Because retroactive promotion.
Emory was "below the zone"' during the
Moreover, the court concluded that evc
years in question, a promotion selection
board would have had to consider him to be if Emory's claims were meritorious, in o-
one of a select group of especially well der even to be considered for promotic
qualified applicants to recommend him for Emory had to be on active status.
promotion. Emory would have been in the U.S.C. 5891(a) (1982). The court stau
"primary zone" for the first time in 1980. that "[t]here is no basis for the court;
Prior to the next duly convened rear admi- order plaintiff reinstated to active stat,
ral promotion selection board, however, pending final disposition of his claim h-
Emory was transferred at his request to cause his inactive status was not mvolic
the Retired Reserve List. He was there- tarily imposed upon him and it was not.
fore not considered for promotion after Oc- result of the alleged wrongs." Thus, tN
tober, 1979. court concluded that Emory's decision vc-;
untarily to retire made his claim for pr
In August, 1983, after exhausting" his motion moot. With respect to Emory's r-
administrative remedies, Emory filed this quest for declaratory relief, the court rule,
action in the district court alleging that his that such relief was "'inappropriate" on
failure to advance to the rank of rear admi- claim chat has become moot.
ral was due to racial discrimination within
the Navy Specifically, Emory alleged that
the failure to include a black officer on the
promotion selection boards resulted in his We note at the outset that the notice <|
not being promoted. He sought a declara- appeal in this case was timely filed.3 F<r
tory judgment that the Navy had violated eral Rule of Appellate Procedure 4(a)(
his rights under the law and Constitution, a provides that in a civil case in which tl-
preliminary injunction requiring appellee to United States is a party, a notice of appet
promote him immediately to the rank of must be filed within sixty days of entry c
rear admiral x-etroactive to July 1, 1978, the judgment. Fed.R.App.P. 4(a)(l). Si!
and such other relief as the court deemed section (4) of that rule provides, however
appropriate. Emory waived any back pay that this time period may be tolled if
entitlement he might have had. He alleged party files a timely motion to alter
that the court had jurisdiction to order the amend the judgment under Federal Rule
relief sought under the fifth and four- Civil Procedure 59(e). Rule 59(e) provide
teenth amendments to the Constitution and that such a motion must be "served m
under 28 U.S.C. 1331, 1343 (1982). later than 10 days after the entry of jud>;
On July 20, 1984, the district court grant- ment." District courts are not empower?
ed appellee's motion to dismiss, finding to extend the ten day time limitation. &
2. 10 U.S.C. 5912 provides: All oiher permanent and temporary appou
Permanent and temporary appointments un- ments under this chapter shall be made by it
der this chapter in grades above lieutenant President alone.
commander in the Naval Reserve and in
grades above major in the Marine Corps Re- 3.. We acknowledge with appreciation the su'
serve shall be made by the President, by and stantial contribution of Amicus, Professor Sbf
with the advice and consent of the Senate. man Cohn, to the resolution of this issue,
547
EMORY v. SECRETARY OF NAVY 293

CUe a* 819 F.2d 291 (D.C.Clr. 1987)
,, ;> for Nuclear Responsibility, Inc. r. Thus, Rule 4(a)(4) is satisfied if the motion
,,!,({ States Nuclear Regulatory is served not later than ten days after the
' ,, 781 F.2d 935, 941 (D.C.Cir.1986). entry of judgment, and if the motion is
t .jurts have routinely construed papers "filed", which under Fed.R.Civ.P. 5(d), can
.. -i.'iied "motion to reconsider" as a mo- occur "within a reasonable time [after ser-
. ,', -/) alter o% amend the judgment under vice]." Id. If Emory perfected service of
, ,. ;,()(e). See Fischer v. United States his Rule 59(e) motion by mailing 5 it to the
',.' :,t of Justice, 759 F.2d 461, 464-65, n. 4 United State.- Attorney within ten days af-
,vl, Or 1985): Lycll Theatre Corp. v. ter entry of the July 20, 1984 judgment,
LOCH* Corp., 682 F.2d '61. 41 (2d Cir.1982). and the motion was filed within a reason-
>uch treatment ir, appropriate even though able timp thereafter, the motion and his
the movant does not specify under which subsequent appeal were timely. Interstate
rule relief is sought, because "[a]ny motion Commerce Comm'n v. Carpenter, 648
hat draws into question the correctness of F.2d 919 (3d Cir.1981).
the judgment is functionally a motion un- [1] Emory's Rule 59(e) motion was dat-
der Civil Rule 59(e), whatever its label." 9 ed July 27, 1984, seven days after judg-
Moore's Federal Practice It 204.12[l] at ment. In addition, Emory submitted an
4-f>7 (1987). Parties may reasonably rely, affidavit together with his supplemental
however, only upon a timely Rule 59(e) brief to this court in which he avers that
motion to reconsider as a basis for delaying the motion was indeed mailed that day. It
the filing of their notice of appeal. See is true, as noted by the government, that
Center for Nuclear Responsibility, Inc. v. the text of the Certificate of Service does
L'mted States Nuclear Regulatory not indicate the date of service. In light of
Comm'n, 781 F.2d at 942. the fact that Emory is proceeding pro se,
In this case, the district court's judgment however, it would seem hypertechnical at
was entered on July 20, 1984.4 Emory's best to conclude that the date of service
notice of appeal was filed on May 16, 1985, cannot be determined because the date ap-
well beyond the sixty-day appeal period. pears slightly above the certificate, rather
When this case was last before us, we were than in the text of the certificate itself. In
concerned that a motion to reconsider, filed light of these facts, we conclude that the
by Emory on August 6, 1984, did not toll Rule 59(e) motion, and hence, the notice of
the appeal period because it was filed be- appeal, were timely filed.
yond the ten days allowed by Rule 59(e).
We are now satisfied that although the II
motion was not filed within the prescribed Emory alleged that there were no minori-
ten day period, it was served during that ty members on the selection boards that
time. That being the case, the motion, and considered him for promotion. He also al-
hence, the notice of appeal, are timely. leged that he was discriminated against by
Briefly, Fed.R.App.P. 4(a)(4) contains two the selection boards because of his race.
distinct requirements. First, that the mo- He sought a preliminary injunction requir-
tion relied upon to toll the appeal period be ing appellee retroactively to promote him
"filed" in the district court, and second, to the rank of rear admiral, and a declara-
that it be a "timely motion." A "timely tory judgment that appellee had violated
motion" under Fed.R.Civ.P. 59(e) is one his statutory and constitutional rights.
that is served not later than 10 days after Generally, courts have shown an extreme
entry of judgment. Keohane v. Swarco, reluctance to interfere with the military's
Inc., 320 F.2d 429, 430-32 (6th Cir.1963). exercise of its discretion over internal
* The order of July 20, 1984, satisfies the proce- on a separate document, and was entered by the
dural requirements for the entry of judgment Clerk of the court on the civil docket.
established by this court in Diamond v. McKen-
zie, 770 F.2d 225, 230 n. 10 (D.C.Cir.1985). The 5. Fed.R.Civ.P. 5(b) provides that "[s]ervice by
order stated the judgment of the district court mail is complete upon mailing."
548
management matters. See, e.g., Orloff v. We note that Emory's current inact
Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. status is not a bar to the district co>.
534, 539-40, 97 L.Ed. 842 (1953); Reaves v. fashioning some relief if it determines u
Ainsworth, 219 U.S. 296, 306 (1911). This his claims are indeed meritorious. See b
deference is "at its highest when the mili- ley v. Alexander, 603 F.2d at 925.
tary, pursuant to its own regulations, ef- Dilley, suit was brought by Army Reser
fects personnel changes through the pro- officers who had been released from act
motion or discharge process." Dilley v. duty because they had twice been pas^
Alexander, 603 F.2d 914, 920 (D.C.Cir. over for promotion. The officers co-
1979), clarified, 627 F.2d 407 (D.C.Cir. plained that the promotion selection boar
1980). were in violation of applicable statutes a:
Here, Congress has enacted legislation regulations because they did not include L
that details the procedures for the pro- appropriate number of reserve officer
motion of officers in the Naval Reserves Judge MacKinnon, writing for this cour
and, as pointed out by the district court, concluded that the officers were entitled .
the courts have no role in this process. See be reinstated to active duty and to be co
10 U.S.C. 5891 et seq. (1982). The selec- sidered again by promotion selectic
tion and promotion process has been specif- boards constituted in accordance with app
ically reserved to the executive and legisla- cable statutes and regulations. Id. at 91
tive branches of government. The pro- Unlike the appellants in Dilley, Emory vc
motion selection board must first recom- untarily chose to remove himself from a
mend Emory for promotion. The President tive status. That fact, however, does nt
must then nominate Emory to the Senate, affect the justiciability of claimed constit.
and upon Senate confirmation, appoint him tional violations that preceded his decisic
to his new rank. 10 U.S.C. 5912. The to retire.
district court was clearly correct in con-
cluding that it cannot intervene in this pro- We express no view on the merits t
cess and order Emory promoted retroac- Emory's claims. We simply hold that di-
tively to the rank of admiral. missal of his complaint for want of subjer
matter jurisdiction was error. According
[2] To so conclude, however, is not to ly, we reverse and remand the case to th-
say that there is an absence of subject district court for further proceedings co<-
matter jurisdiction over Emory's constitu- sistent with this opinion.
tional claims. We have no quarrel with the
district court's conclusion that the opera-
tion of the military is vested in Congress
and the Executive, and that it is not for the
courts to establish the composition of the
armed forces. But constitutional questions
that arise out of military decisions regard-
ing the composition of the armed forces are TAXPAYERS WATCHDOG, INC., et
not committed to the other coordinate al., Appellants,
branches of government. Where it is al- v.
leged, as it is here, that the armed forces
have trenched upon constitutionally guar- Ralph L. STANLEY, Administrator,
anteed rights through the promotion and Urban Mass Transportation
selection process, the courts are not power- Administration, et al.
less to act. The military has not been No. 86-5714.
exempted from constitutional provisions United States Court of Appeals,
that protect the rights of individuals. Par- District of Columbia Circuit.
ker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41
L.Ed.2d 439 (1974). It is precisely the role May 19, 1987.
of the courts to determine whether those
rights have been violated. Dillard v. Taxpayers' association filed complain
Brown, 652 F.2d 316, 320 (3d Cir.1981). seeking to enjoin Urban Mass Transport
549
694 555 FEDERAL SUPPLEMENT
1. Declaratory Judgment =306

COUNTY COUNCIL OF SUMTER Although black registered voters' mo-
COUNTY, SOUTH CAROLINA, et tion to intervene in Voting Rights Act pro-
al., Plaintiffs, ceeding was filed relatively late, where they
moved for intervention less than one month
after United States abandoned issue of
UNITED STATES of America, et whether, in order to obtain declaratory
al., Defendants. judgment of preclearance, county officials
were required to demonstrate that voting
Civ. A. No. 82-0912.
procedure change did not violate statute
United States District Court, prohibiting denial or abridgment of right to
District of Columbia. vote on account of race or color through
voting qualifications did not seek discovery
Jan. 10, 1983. or to relitigate old issues, and their local
As Corrected March 11, 1983. perspective on current and historical fact at
issue could be enlightening to court, motion
Seven black citizens who were regis- to intervene would be granted. Voting
tered to vote in county moved to intervene Rights Act of 1965, 2, as amended, 42
in voting rights action instituted by county U.S.C.A. 1973.
and two county officials seeking declaratory
judgment, implemented by injunction, that
at-large method of election in county was Memorandum on Summary Judgment
not subject to preclearance by Attorney 2. Elections =12
General, that preclearance had already been
Where laws eliminated legal power of
given, and that at-large method did not
governor and General Assembly over local
have purpose or effect of denying or
affairs and vested it exclusively in county
abridging right to vote on account of race,
council elected at large by county voters,
color or previous conditions of servitude. institution of at-large elections for unfet-
Three-judge District Court, Bork, Circuit tered county local government was suffi-
Judge, and Barrington D. Parker and Ober- cient change to require preclearance under
dorfer, JJ., held that: (1) black citizens' Voting Rights Act. S.C.Code 1976, 4-9-
motion to intervene would be granted; (2) 10 et seq., 4-9-10(b); S.C.Act June 20,
institution of at-large elections required 1967, 55 Stat. at Large, p. 523, 1 et seq.;
preclearance; and (3) Attorney General's Voting Rights Act of 1965, 5, as amend-
failure to object to two statutes relating to ed, 42 U.S.C.A. 1973c.
at-large elections for county governing
body did not amount to preclearance by
3. Elections <3=*12
Attorney General; (4) substantial fact issue
existed as to retrogressive effect of at-large De jure change in voting qualifications
elections precluding summary judgment. and procedures as well as de facto change
in voting requires preclearance by Attorney
Order accordingly. General under Voting Rights Act. Voting
See also, 102 S.Ct. 715; 509 F.Supp. Rights Act of 1965, 5, as amended, 42
1334. U.S.C.A. 1973c.
holder may prosecute derivative action pro se None of these exceptions applies here. ' Fur-
because he is properly a plaintiff, and may thermore, there is no first-, fifth-, or sixth-
represent himself and simultaneously present amendment right to representation by a lay-
arguments common to corporate plaintiff), ap- man. See Turner, 407 F.Supp. at 480, 481.
peal dismissed, 312 F2d 399 (2d Cir.1963); cf Finally, I note that plaintiff has obtained coun-
Church of the Visible Intelligence that Governs sel in other cases in this court See Move
the Universe v United States, No. 574-79T Orgn v City of Philadelphia, 89 F R.D. 521,
(Ct.Cl. Feb. 20, 1981) (sembie). See generally 523 n 1 (E.D.Pa.1981).
Annot., 19 A.L.R.3d 1073, 1082-87 (1968).
550
COUNTY COUNCIL OF SUMTER COUNTY v. UNITED STATES 695

Cite as 555 F.Supp. 694 (1983)
j. Elections c=>12 governing alteration of voting qualifica-
Political subdivision must state that it tions and procedures. Voting Rights Act of
ioires preclearance of election before it 1965, 5, as amended, 42 U.S.C.A. 1973c.
can claim preclearance by silence of Attor-
9. Elections e=12
rx\ General. Voting Rights Act of 1965,
District court's role under section of
5, as amended, 42 U.S.C.A. 1973c.
Voting Rights Act governing alteration of
5. Elections e=12 voting qualifications and procedures is to
Where letter that submitted state stat- examine change de novo, as alternative to
jic affecting voting changes in county to Attorney General's decision regarding pre-
\ttorney General did not request preclear- clearance. Voting Rights Act of 1965, 5,
ance nor mention any voting changes, At- as amended, 42 U.S.C.A. 1973c.
torney General's silence concerning statute
did not constitute preclearance of at-large 10. Elections <@=12
election system for county provided for in Difference between background cir-
statute. S.C.Act June 20, 1967, 55 Stat. at cumstances which prevailed in county at
Large, p. 523, 1 et seq. time of original Voting Rights Act, specifi-
cally fact that less than half of voting popu-
6. Elections =12 lation was registered to vote, and those
Where Attorney General reserved his currently prevailing, that over 50% of vot-
right to object to any referendum adhered ing population are registered, did not justi-
to by local counties pursuant to home rule fy reexamination of firm conclusions made
statute passed by South Carolina legisla- by Congress in extending Act to county and
ture, Supreme Court held that letter in- Supreme Court in holding that categories
forming Attorney General of referendum chosen by Congress were and are appropri-
results was only request for reconsideration ate. Voting Rights Act of 1965, 4(b), as
of Attorney General's earlier objection to amended, 42 U.S.C.A. 1973b(b).
statute, and that county's at-large method
of election had still not been precleared,
Attorney General did not preclear at-large Joseph W. Dorn, Kilpatrick & Cody,
elections when he reviewed home rule stat- Washington, D.C., Randall T. Bell, M. Eliza-
ute. S.C.Code 1976, 4-9-10 et seq.; Vot- beth Crum, McNair Glenn Konduros Corley
ing Rights Act of 1965, 5, as amended, 42 Singletary Porter & Dibble, P.A., Columbia,
U.S.C.A. 1973c. S.C., Howard P. King, Bryan, Bahnmuller,
7. Federal Civil Procedure <s= 2491.5 King, Goldman & McElveen, Sumter, S.C.,
Voting rights action in which county for plaintiffs.
and two of its officials alleged that even if Gerald W. Jones, Paul F. Hancock, J.
at-large method of election did represent Gerald Hebert, David S. Cunningham, III,
change in method requiring preclearance, Attys., Civ. Rights Div., Dept. of Justice,
change did not have effect of denying or Washington, D.C., for defendants.
abridging right to vote on account of race, Armand Derfner, Washington, D.C.,
affidavit submitted by black citizens oppos- Laughlin McDonald, Atlanta, Ga., for de-
ing county's motion for declaratory judg- fendants-intervenors.
ment raised substantial fact issue as to
whether system was retrogressive preclud- Before BORK, Circuit Judge, and BAR-
ing summary judgment. Voting Rights Act RINGTON D. PARKER and OBERDOR-
of 1965, 5, as amended, 42 U.S.C.A. FER, District Judges.
1973c.
8. Elections <=12 MEMORANDUM ON MOTION
District court has no authority either to TO INTERVENE
review, or to preview, decision of Attorney Seven black citizens who are registered to
General under section of Voting Rights Act vote in Sumter County, South Carolina, at
551
least one of whom was a party in Blanding doned a contention that in order to obtain a
v. DuBose, 454 U.S. 393, 102 S.Ct. 715, 70 declaratory judgment of preclearance under
L.Ed.2d 576 (1982), move pursuant to Fed. Section 5 of the Voting Rights Act plain-
R.Civ.P. 24 to intervene in this Voting tiffs must demonstrate that the voting pro-
Rights Act proceeding which is a sequel to cedure change did not violate section 2 of
Blanding. Some of the movants made rep- the Act.
resentations to the Attorney General in op- Movants represent that they would enter
position to the preclearance of the at-large the case subject to all outstanding orders,
voting method for Sumter County Council that they do not seek to reopen discovery,
members at issue in Blanding. When the and that in making a factual record without
Attorney General first refused preclear- delaying the trial, they would rely princi-
ance, Sumter County nevertheless contin- pally upon an opportunity to examine and
ued to schedule at-large elections. Some cross-examine witnesses called by others,
movants and the United States sought to and not attempt to call any other witnesses,
enjoin future at-large elections pending except by leave of court if special circum-
preclearance. After a three-judge District stances arise.
Court in South Carolina granted a prelimi-
nary injunction, but ruled for the County on Plaintiffs oppose the motion to intervene
the merits, the United States did not per- as untimely, and urge that, if it is granted,
fect its appeal; intervenors perfected theirs movants' participation should be limited to
and prevailed in the Supreme Court on the filing of a post-trial memorandum.
their contention that the Attorney General Plaintiffs object to movants' failure to seek
had not precleared at-large elections for the to intervene until the close of discovery and
Sumter County Council. Blanding v. Du- on the eve of argument on motions for
Bose, supra. summary judgment. Plaintiffs claim preju-
dice in that they would have conducted
Movants allege that they have an "in- their discovery and prepared and evaluated
tensely local" perspective with respect to their case differently if the movants had
the allegedly discriminatory effects and been parties earlier. For example, plain-
purpose of the change in elections methods tiffs say they would have conducted more
effected by Sumter County that would be extensive discovery had they known that
helpful to us and necessary to the full and Section 2 would be at issue. Plaintiffs em-
proper resolution of this case.1 phasize the time essence here because there
Movants also allege that the United have been no local elections in Sumter
States defendants may or cannot adequate- County for six years, pending resolution of
ly represent movants' interests because this controversy. In addition to the diffi-
those interests may diverge from defend- culty of confronting a Section 2 issue with-
ants' conception of the public interest. In out discovery, plaintiffs urge that movants'
support of this allegation movants point to intervention would necessarily make the tri-
the failure of the United States to pursue al longer, and more complicated and, for
its appeal in Blanding, contending that if plaintiffs at least, more expensive. See
they had not protected their own interests Plaintiffs' Memorandum in Response to Pe-
in the Supreme Court they would have al- tition for Leave to Intervene (Dec. 13,
ready lost the rights which they preserved 1982).
there and now defend here. In addition, Movants rely on a long line of cases in
movants point to defendants' change in po- which this Court has routinely allowed in-
sition in the instant proceeding on October tervention by persons situated similarly to
27, 1982, at which time defendants aban- movants,2 and point to at least one other
I. See Plaintiffs' Memorandum in Support of 2. Busbee v Snvth, C.A No 82-0665 (D.D.C)
Petition for Leave to Intervene (Nov. 26, 1982) (order allowing intervention March 22, 1982);
at 4.
552

Cite as 555 F.Supp. 694 (1983)
case in which intervenors, and not the Unit- The Section 2 issue cannot be ignored, at
ed States, made the only argument for their least upon first impression, and the interve-
position in the Supreme Court. City of nors will be permitted to pursue it, if they
Lockhart v. United States, U.S. so desire, within the limits of their proposed
> 103 S.Ct. 998, 74 L.Ed.2d 863 (1982). intervention and such other limits as the
Moreover, they cite authority that inter- Court may set. We may or may not be
vention should be allowed, even where required to decide the Section 2 issue, but
the United States' interest is apparently we will be better able to deal with it if we
parallel, upon a "minimal" showing that the have evidence than if the argument were
United States' representation of the public before us only in the abstract.
interest as it views that interest "may" not
adequately represent the movants' legiti- In passing the Voting Rights Act Amend-
mate interest. See Trbovich v. United ments of 1982, Pub.L. No. 97-205, 96 Stat.
Mine Workers, 404 U.S. 528, 538-39 and n. 131-135 (June 29, 1982), Congress amended
10, 92 S.Ct. 630, 636 and n. 10, 30 L.Ed.2d Section 2 of the Voting Rights Act, 42
686 (1972). U.S.C. 1973, to read as follows:
SEC. 2. (a) No voting qualification or
[1] We are persuaded that, on balance, prerequisite to voting or standard, prac-
movants should be allowed to intervene on tice, or procedure shall be imposed or
a limited basis. Although movants filed applied by any State or political subdivi-
relatively late, they moved less than a sion in a manner which results in a denial
month after defendants' abandoned the or abridgement of the right of any citizen
Section 2 issue. See Liddell v. Caldwell, 546 of the United States to vote on account
F.2d 768 (8th Cir.1977). Plaintiffs have not
of race or color, or in contravention of the
explained why the discovery they conducted
guarantees set forth in section 4(f)(2), as
before October 27, 1982, (when the defend-
provided in subsection (b).
ants' Section 2 argument was at issue) did
(b) A violation of subsection (a) is estab-
not prepare them to deal with that issue.
lished if, based on the totality of circum-
Movants do not seek discovery or to reliti-
stances, it is shown that the political
gate old issues, but only to participate pro-
processes leading to nomination or elec-
spectively, and to assure a vigorous re-
tion in the State or political subdivision
sponse to plaintiffs' claim. See Natural
Resources Defense Council v. Costle, 561 are not equally open to participation by
F.2d 904 (D.C.Cir.1977). Their local per- members of a class of citizens protected
spective on the current and historical facts by subsection (a) in that its members
at issue could be enlightening to us. Final- have less opportunity than other mem-
ly, we are confident that we can effectively bers of the electorate to participate in the
limit movants' cross-examination and other political process and to elect representa-
potentially time-consuming activities in the tives of their choice. The extent to which
same way that we intend to control the members of a protected class have been
presentations of the parties themselves so elected to office in the State or political
as to minimize the burden on them as well subdivision is one circumstance which
as on the Court, which unfettered interven- may be considered: Provided, That noth-
tion might otherwise entail. ing in this section establishes a right to
City of Port Arthur, Texas v. United States, 517 L Ed.2d 629 (1976), City of Petersburg, Va v
F Supp. 987, 991 n. 2 (D.D.C.1981), prob. juris, United States, 354 F Supp. 1021, 1024 (D.DC
noted, 455 U.S. 917, 102 S Ct. 1272, 71 L.Ed.2d 1972), affd, 410 U.S. 962, 93 S.Ct 1441, 35
457 (1982); City of Richmond, Va v. United L Ed 2d 698 & sub nom. Diamond v. United
States, 376 F.Supp. 1344, 1349 n. 23 (D.D.C States, 412 U.S 901, 93 S Ct 2290, 36 L Ed.2d
1974), remanded on other grounds, 422 U.S 967 (1973); New York State v. United States,
358, 95 S.Ct 2296, 45 L Ed.2d 245 (1975); Beer 65 F.R.D 10, 12 (D.D.C. 1974), see also Trbo-
v United States, 374 F.Supp. 363, 367 n. 5 vich v. United Mine Workers, 404 U S. 528, 92
(D.DC.1974), remanded on other grounds, 425 S.Ct 630, 30 L.Ed 2d 686 (1972)
U S. 130, 133 n. 3, 96 S.Ct. 1357, 1360 n. 3, 47
553
have members of a protected class elected MEMORANDUM ON SUMMARY

in numbers equal to their proportion in JUDGMENT
the population. The County Council of Sumter Count\,
96 Stat. at 134. The Senate Report on the South Carolina (Sumter County), and two
1982 Amendments stated that: "In light of Sumter County officials brought this action
the amendment to section 2, it is intended against the United States pursuant to sec-
that a section 5 objection also follow if a tion 5 of the Voting Rights Act of 1965, as
new voting procedure itself so discriminates amended, 42 U.S.C. 1973c ("the Act")
as to violate section 2." S.Rep. No. 97^17, They have also invoked the Ninth, Tenth,
97th Cong., 2nd Sess. (May 25, 1982) at 12 n. Fourteenth and Fifteenth Amendments of
31, reprinted in 1982 U.S.Code Cong. & Ad. the United States Constitution. Their
News 177, 189 n. 31. In a Reply Brief to amended complaint seeks declaratory judg-
the Supreme Court in City of Lockhart v. ment, implemented by an injunction, that
United States & Cano, No. 81-802 (Oct. an at-large method of electing the Sumter
1982) (filed by defendants in this action County Council is not subject to preclear-
together with their Amended Memorandum ance by the Attorney General of the United
on October 27, 1982), the United States States under Section 5 of the Voting Rights
noted the importance and complexity of the Act of 1965; that if such preclearance is
impact of the 1982 amendment of Section 2 required, the Attorney General has already
on a Section 5 case: "Whether .. the given it; and that, in any event, the at-
'results' standard of Section 2 can properly large method at issue does not have the
be imported into Section 5 presents a com- purpose or effect of denying or abridging
plex issue which can be decided only after a the right to vote on account of race, color,
comprehensive assessment of the statutory or previous condition of servitude. In 1978,
scheme and legislative history." Id. at 4. the two individual plaintiffs and other qual-
The United States also represented that ified electors of Sumter County voted in
"[t]hat inquiry should be performed in the favor of the at-large method of election in a
first instance by [a] district court." Id. referendum. Plaintiffs now also seek de-
claratory and injunctive relief to protect
In order to best address the issue, as
the rights of the qualified electors of Sum-
preserved by the intervenors, but not delay
ter County to vote for the at-large method
resolution of the primary subject of this
of election for County Council in a referen-
action which has precluded County Council
dum, and to have the votes counted in the
elections in Sumter County for at least four
at-large elections which they advocate. Fi-
years, the Court will allow intervenors to
nally, they challenge as inappropriate and,
preserve the issue, cross-examine witnesses
therefore, unconstitutional, Congress's 1982
and rebut evidence on it adduced by plain-
extension of the Act as applied to Sumter
tiffs.
County.
An accompanying Order will grant inter-
venors' motion. A separate accompanying Defendants, who are the United States,
Order will set a pretrial briefing schedule its Attorney General and its Assistant At-
with the expectation that the parties (in- torney General for Civil Rights, have moved
cluding defendants if they wish) may in- to dismiss and for summary judgment on
clude in those briefs argument regarding six of the seven counts in the complaint.
the legal issues and an outline of the evi- Plaintiffs have filed cross-motions for sum-
dence which will be developed to resolve the mary judgment, including a motion for par-
Section 2 issue originally raised by defend- tial summary judgment on Count III, the
ants and now preserved by intervenors (in- count on which defendants believe a trial is
cluding an estimate of any additional court- required. Meanwhile, when defendants re-
room time required to adduce such evi- treated from an earlier contention concern-
dence). ing the interrelation between Sections 2
554

Cite as 555 F.Supp. 694 (1983)
1 3
and 5 of the Voting Rights Act, seven 1968, 1970, 1972 and 1974. In 1975, South
blacks voters of Sumter County moved for Carolina passed the Home Rule Act, which
leave to intervene and to take a limited role permitted each of South Carolina's counties
in the proceedings henceforth. to select by referendum one of five alter-
All of these motions have been fully nate forms of local government contained
briefed, and all except the motion to inter- in the statute, and to decide in the referen-
\ene have been argued to this three-judge dum whether the county governors would
court. For reasons more fully stated below, be elected from single-member districts or
the Court in an accompanying Order will at-large. The Act specifically provided that
deny the defendants' motion to dismiss and if Sumter County held no referendum, the
the plaintiffs' motion for summary judg- council-administrator system derived from
ment, and grant defendants' motions for Act No. 371 in 1968 would remain in place.
summary judgment, thereby leaving for tri- Section 4-9-10(b). The Home Rule Act of
al Count III in its entirety. The motion for 1975 was submitted to the U.S. Attorney
limited intervention is the subject of a sepa- General for preclearance; he interposed no
rate Memorandum and Order issued today. objection at that time, but "he indicated
that the outcomes of Home Rule Act refer-
I enda or assignments of forms of govern-
This case is a sequel to litigation which ment under the Act would be subject to
culminated in the decision of the Supreme preclearance." 454 U.S. at 396, 102 S.Ct. at
Court in Blandlng v. DuBose, 454 U.S. 393, 716.4 Thereafter, Sumter County held no
102 S.Ct. 715, 70 L.Ed.2d 576 (1982) (per referendum and by assignment the council-
curiam) rev'g, 509 F.Supp. 1334 (D.S.C. administrator system was elected at-large.
1981). A brief account of that case will set In 1976, Sumter County submitted for pre-
the stage for this one.2 clearance Act No. 371 of 1967 and the Coun-
In Blanding, a number of citizens of Sum- ty Ordinance implementing that Act on au-
ter County sought to enjoin at-large elec- thority of the Home Rule Act. The Attor-
tions for Sumter County's County Council ney General interposed no objection to the
in 1978. In 1967, the South Carolina Gener- council-administrator form, but "made a
al Assembly passed Act No. 371, placing timely objection to the at-large method of
governmental powers for Sumter County in election of the Council." 454 U.S. at 396,
a County Council, whose members were to 102 S.Ct. at 717. Private parties in Sumter
be elected at-large from the County. By County then instituted suit, and on June 21,
oversight, plaintiffs allege, Act No. 371 was 1978, the scheduled at-large elections for
not submitted to the U.S. Attorney General County Council were enjoined by a District
for preclearance pursuant to the Voting Court in Blanding v. DuBose, No. 78-883
Rights Act, and at-large County Council (D.S.C. June 22, 1978) (Defendants' Ex. C).
elections were held in Sumter County in In November 1978, the County went ahead
1. Compare Memorandum of the United States 3. Upon application by the plaintiffs in Bland-
in Opposition to Plaintiffs' Motion for Summa- ing, the South Carolina District Court enjoined
ry Judgment (Oct 18, 1982) at 17-19 with an the at-large elections scheduled in 1978, see
Amended Memorandum (Oct 27, 1982) at 17 Defendants' Motion for Summary Judgment
(Oct 1, 1982), Ex. C, and County Council elec-
2. Blandmg had been consolidated in the three- tions evidently have not been held in Sumter
judge District Court in South Carolina with County since that time
another action involving the same subject mat-
ter as Blanding and the same parties as in the 4. The U S Attorney General's letter of August
case now at hand. See United States v. County 28, 1975, to the South Carolina Attorney Gener-
Council of Sumter County, No 78-883 ( D S C ); al with respect to the Home Rule Act had
Exs. A, B & C to Defendants' Motion for Sum- stated that such an "assignment of such forms
mary Judgment (Oct. 1, 1982). The govern- of government also constitutes a change which
ment's appeal to the Supreme Court evidently is subject to preclearance requirements of the
was not perfected. Voting Rights Act of 1965." Plaintiffs' Motion
for Summary Judgment (Oct 4, 1982) Ex. Q,
555
with a planned referendum, and a majority her 1, 1964," or if it is, that it either ha-
of voters in Sumter County approved an been precleared or "does not have the pur-
at-large method of election for County pose and will not have the effect of denying
Council, despite the Attorney General's or abridging the right to vote on account of
1976 objection. race or color," within the meaning of Sec-
In 1981, the defendants in Blanding, in- tion 5 of the Voting Rights Act of 1965. 42
cluding E.M. DuBose, one of the plaintiffs U.S.C. 1973c. The complaint is in seven
here, won a declaratory judgment from a counts. We address them in order.
three-judge District Court in South Caroli-
na that the County had obtained preclear-
ance from the Attorney General for at- Count I alleges that the at-large method
large elections in June 1979, when the of election did not establish a "practice or
County had sent a letter to him reporting procedure with respect to voting [in Sumter
that the 1978 referendum had approved at- County] different from that in force or
large council elections for Sumter County, effect on November 1, 1964," 42 U.SC.
and the Attorney General had failed to 1973c, and that it is therefore not subject
respond until September of that year, more to the requirements of the Voting Rights
than 60 days after receiving the letter. The Act. Plaintiffs allege that before that date
District Court stated that the 1978 county and until about 1968, the Sumter County
referendum had approved an election meth- Board of Commissioners, the local forerun-
od different from that in effect on Novem- ners of the County Council, acted as a min-
ber 1, 1964, and that the 1979 letter report- isterial body only. It is a fact that that
ing its results was a request for preclear- Board was appointed by the Governor of
ance. The District Court concluded that South Carolina on the recommendation of
the Attorney General's failure to respond the Sumter County delegation to the South
within 60 days as required by the Act con- Carolina General Assembly. The legislative
stituted preclearance of the change by de- functions contemplated now for the County
fault. 509 F.Supp. at 1336-37. On appeal, Council were allegedly performed prior to
the Supreme Court reversed, holding that 1968 by the State Legislature which enact-
the 1979 letter had been a request for reed local Sumter County bills on the recom-
consideration of the Attorney General's mendation of the Sumter County delega-
1976 refusal to preclear the change, and tion. The plaintiffs' theory is that before
was thus not subject to the 60-day require- November 1, 1964, the Sumter County dele-
ment. Blanding v, DuBose, 454 U.S. at gation was the de facto governing body of
399-401, 102 S.Ct. at 719. Sumter County, and was elected at-large,
and now the County Council would be the
Having failed to persuade the Attorney
governing body and it would also be elected
General to reconsider his 1976 refusal or to
at-large. Since each body was or is to be
persuade the Supreme Court that the At-
elected at-large, plaintiffs argue that func-
torney General had precleared the at-large
tionally there has been no method of elec-
method by default in 1979, plaintiffs now
tion change that requires preclearance ei-
invoke the alternate remedy available to
ther by the Attorney General or this Court.
them under Section 5: seeking a declarato-
ry judgment from this Court that the at- Plaintiffs' argument, although facile,
large election method of electing the coun- simply ignores the Governor's de jure power
ty's governing body authorized for Sumter before November 1, 1964, to appoint the
County by the General Assembly and the county's governing body,5 the Governor's de
1978 county referendum is not a "practice, jure power to veto legislation (including
or procedure with respect to voting differ- local bills for Sumter and other counties)
ent from that in force or effect on Novem- and the de jure power of the entire General
5. Compare United States v. County Council of 641 (DSC.1979), where the pre-1964 County
Charleston County, South Carolina, 473 F.Supp. Commission was elected at-large
556

Citeas5S5F.Supp.694 (1983)
Assembly to enact local laws for Sumter County, and that the County Commissioners
County different from those recommended were uniformly mere ministerial agents of
by the Sumter County delegation. The the delegation. But the laws of 1967 and
plaintiffs' argument also ignores the legal 1975 which eliminated the legal powers of
fact that the Governor and the majority of the Governor and the General Assembly,
the legislators who had the actual and legal persons elected by voters outside of Sumter
powers to govern Sumter County were not County, over local affairs and vested it ex-
elected at-large by the voters of Sumter clusively in a County Council elected at-
County; they were elected by the voters of large by Sumter County voters is too vast a
the entire State of South Carolina. It may change to ignore. As plaintiffs' counsel
be that their legal powers were subject, by conceded at oral argument a de jure change
*ome diplomatic arrangements and customs, as well as a de facto change in voting
to the political power of the Sumter County requires preclearance under the Act. Hear-
delegation which, in turn, had legal powers ing Transcript (Nov. 29, 1982) at 17-18.*
over the local affairs of other counties. We note that both the District Court and
But, at the very least, legal authority over the Supreme Court in Blanding v. DuBose
the local affairs and choice of Commission- stated that the Home Rule Act of 1975
ers of Sumter County was shared between (which implemented Act No. 371 of 1967)
the Governor (elected statewide), the Gen- changed the voting method involved in the
eral Assembly (elected from all counties, selection of supervisors in Sumter County.
only one of which was Sumter), and the 454 U.S. at 395, 102 S.Ct. at 716 ("this
County Commissioners (appointed by the change"), 399, 102 S.Ct. at 718 ("change to
Governor and confirmed by the General As- at-large County Council elections"); Bland-
sembly on recommendation of the Sumter ing v. DuBose, No. 78-764, mem. op. at 1
County delegation). (D.S.C. June 22, 1978) (Defendant's Ex. C)
In 1967, the General Assembly passed Act ("The record in these cases establishes con-
No. 371 (later implemented by the Home clusively that in 1967 the procedure for
Rule Act of 1975). By vesting the local electing members of the County Council for
County Council with all local legislative Sumter County, South Carolina, was
powers and making it locally elected, Act changed by statute"). Without regard as to
No. 371 stripped away the legal power whether the change was good or bad for the
theretofore vested in the Governor, the people of Sumter County, or for the advan-
General Assembly and the Sumter County tage or disadvantage of any racial or other
delegation over local Sumter County af- group there, we are persuaded as a matter
fairs. It eliminated the power of South of law that the institution of at-large elec-
Carolina voters outside Sumter County over tions for the unfettered Sumter County
that County's local affairs. The 1967 law local government required preclearance.
released the locally chosen County Commis- Plaintiffs invite our attention to an opin-
sioners from those actual and legal re- ion of the Supreme Court of South Carolina
straints, and from out-of-county voter in- holding that, under the South Carolina
fluences, and vested in them all these legal State Constitution in place on November 1,
powers, subject only to the will of the vot- 1964, the General Assembly enacted "many
ers of Sumter County, voting at-large. local laws" so that "for all practical pur-
[2,3] It may be that plaintiffs could poses the county government was controlled
prove at trial their proffer that the Gover- by the Acts of the General Assembly" and
nor and the General Assembly universally "the General Assembly was the governing
deferred (without any trade-offs) from 1895 body of the respective counties." Duncan
until 1968 to the Sumter County delegation v. York County, 267 S.C. 327, 334, 228
with respect to the governance of Sumter S.E.2d 92, 95 (1976). The Supreme Court of
6. JUDGE BORK- [I]s it enough to trigger MR BELL: As I understand the case, it's
Section V that there was a de jure change0 either a de jure change or a factual change.
557
South Carolina noted that "it is common Home Rule Act of 1975) relating to at-large
knowledge that only legislative delegations elections for the Sumter County governing
from the counties affected concerned them- body Undisputed facts show that plain-
selves with local bills." Thus. "[i]n addition tiffs' preclearance claim is without merit
to being state legislators, members of the These undisputed facts are that in 1967, Bill
Senate and of the House were effectually No. 371 established the seven-member Sum-
the county legislature and governing ter County Commission, elected at-large
board." Id. The foregoing statement of 1967 South Carolina Act No. 371. In 1968,
local law does not alter the fact that during Bill No. 1339 made a modest amendment to
all the years prior to 1967 the de facto Act No. 371: it gave the Commission power
power of the county delegation with respect to decide for itself which members would
to local legislation was subject to the de serve four year terms and which would
jure power of the entire General Assembly serve two year terms, instead of directly
and the Governor, just as its de facto power specifying which members would so serve.
over appointments to the local Board of Act No. 1339 did not affect the at-large
Commissioners was subject to the de jure method of election set forth in Act No. 371,
power of the Governor. This de jure and by itself the amendment might well not
scheme was unarguably altered by the 1967 be a change in voting procedures requiring
and 1975 statutes, and constitutes a change preclearance. For reasons which plaintiffs
cognizable under Section 5 of the Act.7 Ac- do not entirely explain, the South Carolina
cord Chariton County (Georgia) Board of Attorney General did not submit Act No.
Ed. v. United States, No. 78-0564 (D.D.C.
371 of 1967 to the Attorney General of the
July 27, 1978) Horry County (South Caroli-
United States for preclearance, despite its
na) v. United States, 449 F.Supp. 990 at 995
broad-ranging effect on the organic rela-
(D.D.C.1978).
tionship between the State Governor, the
Defendants urge us to preclude plaintiffs General Assembly, and the government of
from litigating the question of whether Sumter County. See pp. 700-701, supra.
there was a change in voting methods re- On July 29, 1968, an Assistant State
quiring preclearance because they raised (or Attorney General submitted to the U.S.
could have raised) and lost that contention Attorney General copies of seven acts passed
in the District Court proceedings which cul- by the General Assembly in its 1968 session;
minated in the Supreme Court's decision in one of the seven was Act No. 1339.
Blanding v. DuBose, supra. The undisput-
ed facts of the shift of power from the [4,5] The U.S. Attorney General pre-
Governor and the General Assembly to the cleared neither of these Acts. Act No. 371
new County Council require a ruling for was not submitted to him. The letter that
defendants on the merits of Count I with- submitted Act No. 1339 did not request
out resort to the technicalities of collateral preclearance nor mention any voting
estoppel. changes. Defendants' Ex. B. Cf. City of
Rome v. United States, 446 U.S. 156, 169 n.
B 6, 100 S.Ct. 1548, 1557 n. 6, 64 L.Ed.2d 119
Count II of the complaint, on wfiich both (1980). Nor did plaintiffs claim in the liti-
parties seek summary judgment, alleges gation culminating in Blanding v. DuBose,
that the at-large method of election for to which they were party, that the 1968
Sumter County Council was precleared by transmittal of Act No. 1339 had any pre-
the Attorney General's failure to object to clearance implications. Nevertheless, plain-
two statutes (Act No. 1339 of 1968 and the tiffs now claim that the Attorney General's
7. This resolution of the issue makes it unneces- 1, 1964, was a cipher, as contended by plain-
sary for us to reach the factual dispute as to tiffs, or exercised joint governing responsibility
whether the County Board of Commissioners with the state legislative delegation, as urged
appointed by the Governor (on recommenda- by defendants
tion of the County delegation) as of November
86-974 0 - 8 9 - 2 0
558

Cite as 555 F.Supp. 694 (1983)
, , ia . about Bill No. 1339 effected pre- Despite the Supreme Court's ruling in
Blanding v. DuBosc, and the terms of the
:rance of the entire at-large election sys-
-, This claim is without merit. As the Attorney General's letter of August 28,
* .lame Court ruled in United States v. 1975, see note 4, supra, plaintiffs persist in
irtl of Commissioners of Sheffield, Ala.,contending that the Attorney General's "at-
'; U S. HO, 98 S.Ct. 965, 55 L.Ed.2d 148 tempt to reserve his right to reconsider
>l_ a political subdivision must state the assignment [of forms of government
t it desires preclearance before it can and methods of election] was ineffec-
m preclearance by silence. /(/. at 136- tive." Plaintiffs' Memorandum in Support
98 S.Ct. at 981. That ruling applies here of Motion for Summary Judgment (Oct. 4,
.< squires summary judgment for de- 1982), at 16. They contend that the Home
viants on plaintiffs' claim that the Attor- Rule Act itself established the form of
, , General's silence about Act No. 1339 of government and method of election for
each South Carolina county, including Sum-
>W precleared an at-large election system
ter. According to plaintiffs, at that point,
' Sumter County.
the Attorney General was obligated either
to object or to forever hold his peace. They
j(i] The other prong of plaintiffs' pre-
rely upon a statement of the South Carolina
, .trance claim relates to the Home Rule District Court made before the Supreme
Ui of 1975. 1975 S.C. Acts, No. 283, Codi- Court spoko in Blanding v. DuBose that the
es I as S.C. Code 4-9-10 et seq. (1976 and Attorney General was required to pass on
- jpp 1980) (Plaintiffs' Ex. M). The 1975 "all components" of the Home Rule Act
.i'ltm.' Rule Act implemented Act No. 371 submission at the time of the submission;
.-,il its counterparts applicable to other and that the subsequent passage of "adop-
-nith Carolina counties. See pp. 699 tive ordinances merely implemented stat-
"*\ .supra. When the Home Rule Act utes which had been previously precleared."
wt- submitted for preclearance, the Attor- United States v. County Council of Charles-
-i.\ General reserved his right to object to ton County, South Carolina, 473 F.Supp.
ii\ referenda or assignment results ad- 641, 646-47 (D.S.C.1979). Plaintiffs also
ored to by local counties pursuant to that rely upon a District Court's decision in
\ct When Sumter County submitted the United States v. Georgia, C.A. No. C76-
'.%" Act No. 371 and its local ordinance 1531A (N.D.Ga.1977), aff'd. mem., 436 U.S.
nplementing the Home Rule Act assign- 941, 98 S.Ct. 2840, 56 L.Ed.2d 782 (1978).
ment of at-large elections to the Attorney See Plaintiffs' Memorandum in Support of
'aneral for preclearance in 1976, he "made Motion for Summary Judgment (Oct. 4,
timely objection to the at-large method of 1982) at 16-17. Significantly, perhaps, this
lection of the Council." Blanding v. Du- same October 4, 1982 Memorandum of
plaintiffs fails to discuss or even cite the
Bose, 454 U.S. at 396, 102 S.Ct. at 717. In
Supreme Court's opinions in Blanding or
978, the Attorney General declined to
Sheffield, supra.
withdraw his objection to at-large elections
:\>r the council even if the election method Defendants point out in response that
*ere approved by county referendum; when, in 1976, the Attorney General pre-
"t\ertheless, in November 1978, a county cleared the Home Rule Act, there was no
>ferendum opted for the at-large election way of knowing whether Sumter County
~ethod originally contemplated by Act No. would hold a referendum or not, or whether
*"1 In Blanding, the Supreme Court held a referendum if held would select a new
"hat a letter informing the Attorney Gener- form of government or method of election
*' of the referendum results was only a and, if it did, which form or method it
^quest for reconsideration of the Attorney would adopt. Defendants point to regula-
''tneral's 1976 objection, and that Sumter tions formulated by the Attorney General
' ounty's at-large method of election still for the administration of Section 5 which
*ad not been precleared. adopt the traditional, common sense princi-
559
pie that he may refrain from reviewing ty no voter in Sumter County enjoyed
voting changes prematurely. See 28 C.F.R. November 1, 1964," Amended Comph,r-
51.7 (1975); cf. 28 C.F.R. 51.20 (1982). (Aug. 23, 1982), 1 39; augmented the abiht.
So here, defendants urge, the Attorney of black voters to participate in the politic,
General precleared the "ripe" provisions of process and to vote for their county's gO\.
the Home Rule Act that transferred certain erning body "which was previously appoint-
legal powers of the Governor and the Gen- ed by the Governor of South Carolina," ;,/
eral Assembly to local governments and H 40; does not abridge any right to vote or
created the right to hold referenda, while account of race, color, or otherwise, un
he reserved for future review those seque- not lead to "retrogression" in the position
lae of the Home Rule Act which depended of racial minorities with respect to the if-
upon local decisions about whether to hold fective exercise of their right to vote, am!
referenda and the results of those held.8 does not have the purpose or effect of dilut-
Cf. United States v. Board of Commission- ing the voting strength of black voters m
ers of Sheffield, Ala., supra. South Carolina.
From the foregoing we are satisfied, Plaintiffs move only for a partial summa-
again without reference to principles of col- ry judgment on Count III: that th*
lateral estoppel, that the Supreme Court's "change" does not have the effect of "den\ -
precedent of Blanding v. DuBose, the plain ing or abridging the right to vote on
language of the Attorney General's letter account of race or color." 42 U.S.C. 1973c'
of August 28, 1975, and ensuing events in Plaintiffs contend that before and after thi
Sumter County all combine to require that change black voters voted in the election
we reject plaintiffs' claim that the Attorney for Sumter County's governing body be-
General precleared at-large elections when fore the change the legislative delegation
he reviewed the Home Rule Act of 1975. was the governing body and was elected
An accompanying Order therefore grants at-large; after the change the County Com-
summary judgment to defendants on both mission was the governing body and v\a>
issues raised by Count II of the complaint. also so elected. Secondly, plaintiffs support
their motion with proffers of evidence that
the "black community . . did not object to
In Count III of their complaint, plaintiffs the at-large method of election for mem-
assert that, even if the at-large method of bers of the Commission, but in fact wel-
election did represent change in method comed the opportunity to be able to vote for
requiring preclearance, and, even if the members of the Commission." Plaintiffs'
change were not precleared by the Attorney Memorandum (Oct. 4, 1982), supra, at 23
General, it passes muster under Section 5 of Thirdly, plaintiffs urge that the pre-1964
the Voting Rights Act. More specifically, Board of Commissioners was appointed and
Count III alleges that the changes effected no black had any role in appointing a mem-
pursuant to Act No. 371 and the Home Rule ber of the Board, whereas the method at
Act of 1975 as implemented by the 1978 issue gives all voters, black and white, a
referendum, gave all Sumter County voters role in the process. Since the black voters
an opportunity to elect the members of the now have a right to vote for members of
county's governing body, "which opportuni- the County Commission which they did not
8. Ignoring Charleston County (as did the Su- on part of South Carolina Home Rule Act and
preme Court in Blanding v DuBose), defend- reserved on other parts Amended Memoran
ants distinguish United States v Georgia, su- dum of the United States in Opposition to Sum
pra, on the ground that the voting changes mary Judgment (Oct 27, 1982) at 13-14 This
which the Attorney General purported to re- appears correct to the Court
serve for review in that case were all in place
when he reviewed Georgia's Home Rule Act, 9. Defendants make no cross-motion with re
whereas the Sumter County changes on which spect to Count III and contend a trial is neces
the Attorney General reserved judgment were sary on that count as a whole
uncertain and yet to take effect when he ruled
560

Cite as 555 F.Supp. 694 (1983)
..R'uou.sly have, defendants claim on au- the county's governing board, two more
M,,nt\ of Beer v. United States, 425 U.S. than now serve. We agree with defendants
;.<n. 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), and City of Rome that we should consider a
.ml Churiton County Board of Ed. v. Unit- comparison of the appointive and at-large
',,1 States, C.A. No. 78 0564 (D.D.C.1978), methods in the context of the present. Ac-
n.it the minority's ability to participate is cordingly, the defendants' proffer raises an
..dually increased. issue of fact about retrogression which can-
Defendants point out that plaintiffs not be resolved without an evidentiary
Aould test for retrogression by comparing hearing.
.ho role of black voters before 1967 with In addition, defendants originally con-
their role now, even though plaintiffs tended that even if the change from the
Miught no preclearance in 1967 and the mat- appointive method which previously obtain-
ter is only coming to issue in 1983. Defend- ed to the current at-large system were not
ants contend that retrogression must be demonstrably retrogressive, defendants are
.i>ted by examining how the appointive entitled to an opportunity to show that the
-\.^lem used prior to 1967 would operate changed method is itself discriminatory,
{inlay as compared to how an at-large sys- and that plaintiffs have the burden of es-
tem in place today would operate. Defend- tablishing that the at-large system does not
ants refer us for guidance to the Supreme violate section 2 of the Voting Rights Act.10
Court's decision in City of Rome v. United Defendants subsequently have abandoned
Slates, 446 U.S. 156, 100 S.Ct. 1548, 64 their contention that plaintiffs have an obli-
I.Ed.2d 119 (1980). There, as here, the gation to satisfy Section 2 requirements.11
local jurisdiction had delayed the preclear- Defendants preserve, however, the conten-
ance process, in that case with respect to tion that, according to Beer, even if a
several annexations to municipality of change is not retrogressive, it may not be
Home, Georgia. The Supreme Court en- precleared if it "discriminates on the basis
dorsed the procedure, once the case finally of race or color so as to violate the Constitu-
came to litigation, of responding "to the tion." Beer v. United States, 425 U.S 130,
realities of a situation as they exist at the 141, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629
time of decision." City of Rome v. United (1976); see Busbee v. Smith, 549 F.
States, 472 F.Supp. 221, 247 (D.D.C.1979), Supp. 494 (D.D.C.1982). Compare Memo-
uff'd., 446 U.S. 156, 186, 100 S.Ct. 1548, randum of the United States in Opposition
1566, 64 L.Ed.2d 119 (1980). to Plaintiffs' Motion for Summary Judg-
[7] In traversing the plaintiffs' motion, ment (Oct. 18, 1982) at 17 n. 7, with Amend-
defendants proffer deposition testimony ed Memorandum of the United States in
from qualified political historians and local Opposition to Plaintiffs' Motion for Sum-
South Carolina political figures that if an mary Judgment (Oct. 27, 1982) at 17. In
appointive system were operative today at support of their amended opposition argu-
least two black persons would be serving on ment that the new method is unconstitu-
10. The Voting Rights Act Amendments of 1982, fendant United States has argued in its Reply
PubL No. 97 205, 96 Stat 131, amended Sec- Brief to the Supreme Court in City ot Lockhart
tion 2 of the Act to read that v United States & Cano, No 81-802, (Oct
No voting practice or procedure shall be 1982) that "[w]hether the 'results' standard
imposed or applied in a manner that of Section 2 can properly be imported into
results in a denial or abridgement of the right Section 5" should be determined "in the first
to vote instance" by a District Court. Id. at 4 (filed in
See 96 Stat. at 134. The Senate Report on the this action together with Defendants' Amended
1982 Amendments stated that by amending Memorandum, Oct. 27, 1982)
Section 2, "it is intended that a section 5 objec-
tion also follow if a new voting procedure itself 11. This argument will apparently be preserved,
so discriminates as to violate section 2." however, by the intervenors in this action
SRep. No. 97 417, 97th Cong., 2d Sess (May whose petition to intervene is granted today in
25, 1982) at 12 n. 31, reprinted at 1982 U.S. a separate Memorandum and Order
Code Cong. & Ad.News 177, 189 n. 31. De-
561
tionally discriminatory, defendants proffer the position that the Attorney Genera
substantially the same evidence that they would take, if we later invalidate the a1
originally had proffered in support of their large election method at issue here \
Section 2 argument: e.g., expert testimony defendants point out, however, we have n.
concerning the historical evidence of racial authority either to review, or to preview
discrimination in South Carolina govern- decisions of the Attorney General unrkr
ments (including Sumter County's); the Section 5. Defendants' Motion for Summa-
purpose and effect of the institution of an ry Judgment (Oct. 1, 1982) pp. 8-9, * 9; st',
at-large voting system in Sumter County; Morris v. Gressette, 432 U.S. 491, 97 Sft
alleged racial polarization of voting in the 2411, 53 L.Ed.2d 506 (1977). Plaintiffs seek
county; and difficulties encountered by a declaratory judgment in the nature of an
blacks seeking political support in Sumter advisory opinion with respect to a matter
County at-large, as distinguished from in over which we have no jurisdiction. Even
single member districts. Defendants' if the Attorney General's intention were a^
Amended Memorandum, supra, at 19-22. alleged,12 it is not within our power to an-
Defendants suggest that the retrogression, ticipate or rule on it; this Court's role un-
purpose and effect questions are inextrica- der Section 5 of the Act is to examine the
bly intertwined, that decision on all of these change de novo as an alternative to the
issues should be postponed until after the Attorney General's decision regarding pre-
trial on the merits, and that therefore plain- clearance. Accordingly, the accompanying
tiffs' motion for partial summary judgment Order will deny plaintiffs' motion for sum-
on retrogression should be denied. mary judgment on Count IV and grant
We agree that decision on all of these defendants' motion thereon.
questions depends upon facts which should
be developed at trial. Accordingly, we will E
follow the example of our colleagues in In Count V, plaintiffs claim that defend-
Busbee v. Smith, supra, to the extent of ants' refusal to preclear the method of elec-
reserving resolution of these issues until tion for which the individual plaintiffs vot-
after trial. In addition, a separate Order ed in the 1978 referendum denied and im-
filed today will grant the motion to inter- paired their constitutional right to vote and
vene filed by interested black voters of the similar right of all of the other citizens
Sumter County thereby preserving the Sec- who voted in the 1978 referendum for the
tion 2 argument now raised by them and at-large system, and effectively denied
permitting them to cross-examine witnesses their rights to vote in scheduled at-large
and possibly adduce rebuttal evidence. elections pursuant to the Home Rule Act.
Plaintiffs invoke the First, Fifth, Ninth and
D Tenth Amendments, as well as Section 17 of
[8,9] Count IV of the complaint alleges the Voting Rights Act.
that the Attorney General will object to Again, in Count V, the plaintiffs are chal-
any method of election other than a single- lenging the failure of the Attorney General
member district method, and that such a to preclear the at-large method of election
method would dilute the voting strength of for Sumter County. For reasons already
black voters in Sumter County and deny stated, our role must be limited to de novo
and abridge their right to vote in violation consideration of whether the method of
of Sections 2 and 5 of the Voting Rights election violates rights protected by the
Act and the First and Fifteenth Amend- Voting Rights Act or the Constitution. We
ments of the Constitution. Cross-motions cannot sit in judgment here upon whether
for summary judgment dispute whether we the Attorney General's refusal to preclear
can, or should, anticipate in this proceeding violated rights asserted by plaintiffs. See
12. Defendants state that plaintiffs have mis- Defendants' Motion for Summary Judgment
stated defendants' true position on this issue. (Oct. 1, 1982), p 9, U 9, and Ex. D.
562

Cite as 555 F.Supp. 694 (1983)
Morris v. Grcssctto, supra; City of Rome v. that the conditions found to exist in 1965
United States, 450 F.Supp. 378, 380 82 can no longer justify extending the regional
iD.DC.1978). Plaintiffs are not entitled to requirements of the Voting Rights Act in
an\ declaratory judgment about the effect 1982. Specifically, plaintiffs point to Sec-
on them of defendants' refusal to grant tion 4(b) of the Act which made the Act
Section 5 preclearance. The accompanying applicable to a state or political subdivision
Order will grant defendants' motion for only if less than half of the state's or subdi-
-.ummary judgment on Count V. vision's voting population was registered to
vote on November 1, 1964. Plaintiffs' Op-
position to Defendants' Motion for Summa-
Count VI is a rather bold demand that ry Judgment (Oct. 18, 1982) at 51. Plain-
this Court in effect overrule decisions of the tiffs proffer without contradiction that
Supreme Court validating Congress's deci- while less than half of the voting popula-
sion to apply the Voting Rights Act to some tions of South Carolina and of Sumter
States and not to others. Since this issue County were registered to vote in 1964, on
has been resolved by the Supreme Court, May 28, 1982, slightly more than half were
plaintiffs may be raising it here to preserve registered. These circumstances, plaintiffs
it for reconsideration by the Supreme Court claim, distinguish the 1982 extension as ap-
upon appeal. Our accompanying Order plied to them from the circumstances relied
granting the defendants' motion for sum- upon in South Carolina v. Katzenbach, su-
mary judgment on Count VI will accom- pra, to uphold the 1964 Act.
plish this. See City of Rome v. United Defendants respond that voting practices
Slates, 472 F.Supp. "221, 235 (D.D.C.1979), in Sumter County have not changed so re-
aff'd., 446 U.S. 156, 180, 100 S.Ct. 1548, markably as to justify this Court's re-exam-
1563, 64 L.Ed.2d 119 (1980); South Carolina ination of the factual premise for Con-
i Katzenbach, 383 U.S. 301, 324-28, 86 gress's decision to include the county in the
S Ct. 803, 816, 15 L.Ed.2d 769 (1966). category of political entities embraced by
the Voting Rights Act as amended. Indeed,
defendants point out that the Senate Judici-
[10] Count VII of the complaint chal- ary Committee specifically mentioned Sum-
lenges the constitutionality of the 1982 ter County as a jurisdiction which had not
amendments to Section 5 of the Voting yet complied with Section 5 as it was enact-
Rights Act of 1965 on the ground that ed in 1964. See S.Rep. No. 97^117, 97th
Congress failed to make current factual Cong., 2nd Sess., p. 14 (May 25, 1982), re-
findings about the extent of voting regis- printed at 1982 U.S.Code Cong. & Ad.News
tration in 1975 and 1982 comparable to the 177, 191. Obviously, the preclearance re-
congressional findings made on this subject quirements of the original act and its 1982
to justify the Voting Rights Act legislation amendment had a much larger purpose
enacted in 1965. With regard to Congress's than to increase voter registration in a
1975 extension of the Act, the Supreme county like Sumter to more than 50 percent.
Court has ruled that it was constitutionally We are not persuaded that the difference
accomplished. City of Rome v. United between the background circumstances
States, supra, 446 U.S. at 180, 100 S.Ct. at which prevailed in Sumter County in 1964
1563. Defendants maintain, in effect, that as related by plaintiffs in support of their
the voting discrimination that justified the motion and those obtaining today, justify
1%5 Act has been eliminated, at least in our re-examination of the firm conclusions
South Carolina and in Sumter County, so made by Congress in extending the Act, ls
13. We note that both Houses of the 97th Con- 97-417, 97th Cong., 2d Sess. (May 25, 1982),
gress held hearings, produced extensive re- reprinted in 1982 U.S.Code Cong. & Ad.News
ports, and held lengthy debates before deciding 177-410; H.R.Rep. No. 97-227, 97th Cong., 1st
to extend the Act in 1982. See, e.g.. S.Rep. No. Sess. (Sept. 15, 1981); 128 Cong.Rec., Nos.
563
and the Supreme Court in City of Rome and Death

South Carolina v. Katzenhach, supra, in Wrongful death claim arising out of
holding that the categories chosen by Con- fatal shooting of victim by police officer
gress were and are appropriate. Accord- was barred where it was not brought within
ingly, plaintiffs' motion for summary judg- two years as specified in Illinois Wrongful
ment on Count VII will be denied, and Death Act. Ill.Rev.Stat.1981, ch. 83, * 15
defendants' will be granted. This ruling is
without prejudice to reopening of the issue
Janette C. Wilson, Wilson, Howard, P C
of the constitutionality of the 1982 amend-
Chicago, 111., for plaintiff.
ments by the plaintiffs or by the Court, sua
sponte, if the proof at trial should require William W. Kurnik, Judge, Kurnik &
reconsideration of this aspect of the case. Knight, Ltd., Park Ridge, 111., for defend-
ant.
MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.
Douglas Gates ("Administrator Gates"),
Administrator of the Estate of Waymon
Gates ("Gates"), initially sued several de-
fendants under 42 U.S.C. 1983 and 1985,
Douglas GATES, etc., Plaintiff, claiming the fatal shooting of Gates by Citj
v. of Dwight Police Officer Michael Montalba-
no ("Montalbano") was without probable
Michael MONTALBANO, Defendant. cause and a violation of Gates's constitu-
No. 82 C 1269. tional rights. After the other defendants
had been dismissed for other reasons, Mon-
United States District Court, talbano moved to dismiss the complaint
N.D. Illinois, E.D. (filed some three years after the cause of
Jan. 10, 1983. action accrued) on limitations grounds. In
Gates v. Montalbano, 550 F.Supp. 81 (N.D.
111.1982) ("Opinion I") this Court dismissed
Suit was brought by administrator of the wrongful death claim of Gates's next of
decedent's estate claiming that police offi- kin but denied dismissal as to Gates's own
cer's fatal shooting of decedent violated de- claim (which had survived his death and
cedent's constitutional rights. On officer's devolved upon Administrator Gates).
motion to dismiss, the District Court, Sha- Administrator Gates has now moved for
dur, J., 550 F.Supp. 81, found wrongful reconsideration of Opinion I's dismissal of
death claim was barred, and administrator the wrongful death claim.1 For the reasons
moved for reconsideration. The District stated in this memorandum opinion and or-
Court, Shadur, J., held that wrongful death der, his motion is denied.
claim arising out of fatal shooting of victim
by police officer was barred where it was Opinion I
not brought within two years as specified in Opinion I found Beard v. Robinson, 563
Illinois Wrongful Death Act. F.2d 331, 334-38 (7th CIr.1977) dispositive
Motion denied. as to Gates's own civil rights claim. Beard
74 77 (daily eds June 14-18, 1982) (Senate), bano's motion, so that the Court had to review
128Cong.Rec H3839-H3846 (daily ed June 23, the legal questions on its own. Apparently
1982) & 127 Cong Rec H6938 H7011 (daily ed. neither Montalbano's motion nor notice of the
Oct 5, 1981) (House) Court's order was received by Administrator
Gates's counsel, who had moved offices since
1. As Opinion I pointed out, 550 F.Supp. at 82, filing this action.
Administrator Gates had not complied with the
briefing schedule set by this Court on Montal-
564
COUNTY COUNCIL OF SUMTER COUNTY, S.C. v. U.S. 35

Cite as 5% F.Supp. 35 (1984)
meet the case or controversy requirement. way to a man's heart lies through his stom-
Valley Forge Christian College v. Ameri- ach, then so does the way to his bile. But,
can United, etc., 454 U.S. 464, 471, 102 prison life cannot be modeled after a reli-
S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Unit- gious retreat. Incarceration, after all, it-
ed States Parole Comm'n v. Geraghty, self impedes the exercise of a variety of
445 U.S. 388, 395, 100 S.Ct. 1202, 1208, 63 freedomsas well it should. The Constitu-
L.Ed.2d 479 (1980). As in Duffy v. Quat- tion requires that correctional facilities
trocchi, 576 F.Supp. 336, 342 (D.R.I.1983), meet certain minimum standards of decen-
"(t)he plaintiff's pruritis cannot be cy, wholesomeness, cleanliness and the
scratched by the federal judiciary in the likenot that they cater to the individual
absence of a live controversy." And sec- preference of each inmate or that institu-
ond, there is a failure to plead with the tional cuisine be presented and served in a
requisite specificity. See O'Shea v. Little- manner which Guide Michelin would ap-
ton, 414 U.S. 488, 497, 94 S.Ct. 669, 676-77, plaud. A jail is, when all is said and done,
38 L.Ed.2d 674 (1974); Fisher v. Flynn, a penal institution maintained for the pur-
598 F.2d 663, 665 (1st Cir.1979) (Title VII); pose of imprisoning those who have com-
Black v. Brown University, 555 F.Supp. mitted wrongs against society and thus are
880, 886 (D.R.I.1983). receiving their just desserts; it is neither a
country club, nor a three-star bistro. The
[2] As to the conditions attendant upon applicable criteria must be judged accord-
the plaintiffs confinement, none of the alle- ingly.
gations of harm or deprivation appear fa-
cially to sink to the level of constitutional Chase's complaint is not judicially diges-
violationsa level which must be met to tible in the form presented. Consonant
confer jurisdiction on this court. Procuni- with the foregoing, the action must be, and
er v. Martinez, 416 U.S. 396, 404-05, 94 it hereby is, dismissed.
S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974). So ordered.
And in any event, Chase is part of the class
for whose benefit suit has long since been KEY NUMBED SYSTEM;
brought in this court to insure that condi-
tions at the ACI are no worse than the
minimum level permissible under the
Eighth Amendment.1 That case remains
pending, and is a more apt forum for a COUNTY COUNCIL OF SUMTER
generalized complaint of the type noted by COUNTY, SOUTH CAROLINA, et
this plaintiff. It would defeat the salutary al., Plaintiffs,
purposes of Fed.R.Civ.P. 23 to permit
Chase to attempt collaterally to traverse v.
the same ground in an individual action. UNITED STATES of America, et
al., Defendants,
The prisoner's complaint as to interfer-
ence with his First Amendment rights is Larry Blanding, et al.,
far too attenuated to be swallowed whole. Defendants-Intervenors.
Members of the plaintiff's faith are not, for Civ. A. No. 82-0912.
aught that appears, treated better or worse
United States District Court,
than others who dine (not by choice) at the District of Columbia.
HSC. And, some effort has apparently
been made, to the extent feasible, to honor May 25, 1984.
valid sectarian dietary demands.
At bottom, Chase's action presents the In a Voting Rights Act case, a three-
flip side of a familiar aphoristic coin: if the judge panel of the District Court held that
1. Judge Pettine specifically retained jurisdiction (D.R.I.1977).
in Palmigiano v. Garrahy, 443 F.Supp. 956, 990
565
at-large system for electing council mem- PER CURIAM:

bers in a South Carolina County violated We are concerned that because this and
Voting Rights where county officials failed related proceedings have been so protract-
to prove that the at-large election system ed and, more recently, because of the "exi-
would not lead to a retrogression in posi- gencies of judicial deliberation," Beer v.
tion of racial minorities with respect to United States, 374 F.Supp. 357, 360 (D.D.
their effective exercise of the electoral C.1974), elections have not been held in
franchise and also failed to disprove that a Sumter County for some time. Although
discriminatory purpose was present as a this court is not yet ready to issue its full
motivating factor among other legitimate opinion and findings of fact, we have
nondiscriminatory ones. agreed upon a disposition. Rather than
Order in accordance with opinion. permit the current situation to continue,
with no elections being held, we have decid-
Case denied. ed to issue an order stating our agreed
disposition, with opinions and findings to
follow.
Counties =38 We conclude that plaintiffs have failed to
At-large system for electing council carry their burden of proof under section 5
members in a South Carolina County violat- of the Voting Rights Act, 42 U.S.C. 1973c
ed Voting Rights where county officials (1982), and have failed to prove that Act
failed to prove that the at-large election 371, 1967 S.C. Acts 371 ("Act 371"), as
system would not lead to a retrogression in amended and supplemented, has neither
position of racial minorities with respect to the purpose nor effect of denying or
their effective exercise of the electoral abridging the right of black South Carolin-
franchise and also failed to disprove that a ians to vote.
discriminatory purpose was present as a The Supreme Court has said: "The fact
motivating factor among other legitimate that a covered jurisdiction adopted a new
nondiscriminatory ones. Voting Rights election practice after the effective date of
Act of 1965, 5, 42 U.S.C.A. 1973c. the Voting Rights Act raises, in effect, a
statutory inference that the r actice may
have been adopted for a discriminatory pur-
Joseph W. Dorn, Kilpatrick & Cody, pose or may have a discriminatory effect."
Washington, D.C., Terrell Glenn, M. Eliza- McCain v. Lybrand, U.S. , 104
beth Crum, McNair, Glenn, Konduros, Cor- S.Ct. 1037, 1049-50, 79 L.Ed.2d 271 (1984).
ley, Singletary, Porter & Dibble, P.A., Co- Plaintiffs have failed to rebut the inferenc-
lumbia, S.C., Howard P. King, Bryan, es that can be drawn from the following
Bahnmuller, King, Goldman & McElveen, facts. Their application for a declaratory
Sumter, S.C., for plaintiffs. judgment must therefore be denied.
Summary Findings of Fact
Gerald W. Jones, Paul F. Hancock, J.
Gerald Hebert, Thomas G. Snow, Attys., 1. South Carolina is a covered jurisdic-
Civ. Rights Div., Dept. of Justice, Wash- tion under the Voting Rights Act. The
ington, D.C., for defendants. State has a history of segregation and per-
vasive racial discrimination which has been
Armand Derfner, Washington, D.C., an important factor in detrimentally affect-
Laughlin McDonald, Atlanta, Ga., Herbert ing the political participation of black South
Buhl, II, Columbia, S.C., for defendants-in- Carolinians. Until after the passage of the
tervenors. Voting Rights Act, South Carolina enacted
and enforced a variety of laws that had the
Before BORK, Circuit Judge, and PAR- purpose and effect of denying the right to
KER and OBERDORFER, District Judges. vote to its black citizens.
566
COUNTY COUNCIL OF SUMTER COUNTY, S.C. v. U.S. 37

Cite as 596 F.Supp. 35 (1984)
2. In 1980, Sumter County blacks con- out regard to geographic location of resi-
stituted 44.1 percent of the population, 41.3 dency. Thus, under this Act, the citizens
percent of the voting age population, and of Sumter Countya majority of whom are
42.1 percent of the registered voters. whiteelect all of the Council members.
3. Racial segregation was, and in large 9. Since the adoption and implementa-
measure remains, the way of life in much tion in 1967 of the at-large system, only
of the private sector of Sumter County. one black person (Phillip Rembert in 1974)
Voting in Sumter County is racially polar- has been elected to the Sumter County
ized. governing body.
4. Before Act 371 was passed in 1967, 10. There are three gubernatorially ap-
members of the Sumter County Board of pointed boards in Sumter County; each has
Commissioners, the County's governing more than one black. Although the num-
body, were appointed by the Governor on ber of persons representing the black com-
recommendation of the local delegation to munity who would be appointed by the
the State General Assembly (the "Legisla- Governor today if that system were in
tive Delegation"). This Legislative Delega- place is to a degree speculative, appoint-
tion de facto governed Sumter County, al- ments by race to these boards is probative.
though the General Assembly of South 11. Regardless of the relative merits of
Carolina possessed the de jure authority to comparing the appointive system with the
enact local laws for Sumter County and the at-large system, a fairly drawn single-mem-
Governor had the de jure authority to veto ber district election plan would give black
all such legislation. Both the Governor voters of Sumter County a better opportu-
and the Legislative Delegation were elected nity to elect candidates of their choice to
at-large. the Sumter County Council than the at-
5. Prior to 1967, the Governor followed large system does. A fairly drawn single-
the Legislative Delegation's recommenda- member district plan for the Sumter Coun-
tions concerning appointments to the Coun- ty Council is more likely to allow black
ty governing body. As long as this appoin- citizens to elect candidates of their choice
tive system was in effect, no black person in three of seven districts (or 42.8 percent
was appointed to Sumter County's Board of of the representation on the Council).
Commissioners. 12. Act 371 was not submitted to the
6. In mid-1967, the Governor began ap- Attorney General for preclearance pursu-
pointing blacks to various offices. ant to the Voting Rights Act. Thus, the
7. During 1966-67, the South Carolina at-large elections for the Sumter County
Senate was compelled to alter its apportion- Council held in 1968, 1970, 1972, 1974 and
ment system after its apportionment was 1976 were in violation of section 5 of the
held to violate the fourteenth amendment. Voting Rights Act.
This created the possibility that a black 13. In 1975, the South Carolina legisla-
senate district would be created and the ture passed the Home Rule Act, which
person elected from that district might con- permitted each of South Carolina's counties
trol appointments to the Sumter County to hold a referendum to select one of five
governing body. alternate forms of local government, and to
8. In 1967, the South Carolina legisla- decide whether county governors would be
ture passed Act 371. Act 371, which was elected at-large or from single-member dis-
formulated without significant input from tricts. The Sumter County Council did not
Sumter County's black community, creates call for a referendum, thus preserving the
a seven-member Sumter County Council. council administrator system derived from
Under Act 371, each Council member is Act 371.
elected at-large. The winners are deter- 14. The reason the members of Sumter
mined by majority vote and voting is with- County Council gave for refusing to hold
567
the referendum, despite the objections of, 18. Plaintiffs have failed to carry their
among others, the Sumter County League burden of proving that the at-large system
of Women Voters, the Sumter County Re- was not maintained after 1967 for racially
publican Party, and the only black council- discriminatory purposes and with racially
man, was "that they knew more or less discriminatory effect.
what was best for the community." Plain- Conclusions of Law
tiffs have not effectively rebutted evidence 1. Although it may seem anomalous to
that racial considerations influenced the some to apply a statute prohibiting any
Council's decision not to hold a referendum. actions denying or abridging the "right to
15. The white members of the Sumter vote" where an appointive system has been
County Council have at all times taken replaced by an elective one, we are con-
public positions favoring at-large elections. vinced that section 5 of the Voting Rights
In an advisory referendum held in Novem- Act does apply to this case. We reach that
ber 1978 on at-large elections, all the or- conclusion for two reasons. First, the Su-
ganizations in Sumter County that took a preme Court has strongly implied in
position on the referendum question fa- Blanding v. DuBose, 454 U.S. 393, 102
vored single-member districts. The white S.Ct. 715, 70 L.Ed.2d 576 (1982), that the
councilmen continued to favor at-large dis- Voting Rights Act applies to this case.
tricts and issued a position paper warning Second, in McCain v. Lybrand, U.S.
against "fragment[ing] county government , 104 S.Ct. 1037, 79 L.Ed.2d 271 (1984),
into special interest groups." The white the Supreme Court applied the Voting
councilmembers also secretly prepared a Rights Act in a case like this, where an
full-page advertisement endorsing at-large appointive system was replaced by an
elections which appeared in the Sumter elective system. Also, in that decision the
Daily Item on the eve of the referendum. Supreme Court defined section 5 of the
Plaintiffs have not effectively rebutted evi- Voting Rights Act to cover "any election
dence that the advertisement was intended practices different from those in effect on
to make clear that the referendum question November 1, 1964." McCain v. Lybrand,
(at-large versus single-member districts) 104 S.Ct. at 1044.
was essentially a racial one. 2. In Blanding v. DuBose, the Supreme
Court held that a letter the So^ch Carolina
16. In the referendum election, the at- Attorney General sent to the United States
large system was preferred by the slight Justice Department reporting that the 1978
majority of 787 votes out of approximately referendum had approved at-large council
12,700 votes cast. Whites are estimated to elections for Sumter County did not consti-
have voted for at-large elections by a four tute a request for preclearance. The Su-
to one margin; blacks are estimated to preme Court viewed the 1979 letter as a
have voted nine to one against at-large request for reconsideration. Thus, the
elections. Court held that the Attorney General's fail-
17. Plaintiffs have failed to carry their ure to respond within 60 days as required
burden of proving that the legislature did by the Act did not constitute preclearance
not pass Act 371 in 1967 for a racially of the change by default. If the Voting
discriminatory purpose at the insistence of Rights Act does not apply to Sumter Coun-
the white majority in Sumter County, be- ty's change to at-large council elections,
cause the at-large method of voting may the Supreme Court need not have decided
have diluted the value of the then-increas- whether the 1979 letter was a request for
ing voting strength of the black minority, preclearance: preclearance would not be
may have prevented formation of a black necessary.
majority senate district, and probably pre- 3. In McCain v. Lybrand, the Supreme
vented appointment by the Governor of Court accepted a stipulation that an Act
blacks to the Sumter County Council. which replaced a Board of County Commis-
568
JOHNSON v. ZURZ 39
Cite as 596 F.Supp. 39 (1984)
sioners that had two appointed members L.Ed.2d 245 (1975). The evidence plaintiffs
with a three-member County Council elect- have adduced does not do this.
ed at-large was required to be submitted 5. Since we find that section 5 of the
for preclearance. 104 S.Ct. at 1046 n. 17. Voting Rights Act applies, and that plain-
The Court could not have accepted such a tiffs have failed to prove that the proposed
stipulation had the Voting Rights Act not change is not retrogressive, we need not
applied, as the Act's applicability goes to reach the section 2 issues in this case.
the Court's subject matter jurisdiction, and 6. Defendant-intervenors have moved
parties cannot waive a defect in subject that this court order interim elections pend-
matter jurisdiction. Moreover, in McCain ing our decision on the merits of plaintiffs'
the Court expressly and repeatedly defined case. They ask that we divide the County
section 5 of the Voting Rights Act as fol- into seven single-member districts and that
lows: we modify the election schedule to allow
Section 5 of the Voting Rights Act of for implementation of this interim plan.
1965 ... required a covered State or This motion is mooted by the order we
political subdivision desiring to imple- issue today unless this order is stayed by
ment any election practices different the Supreme Court. There will be time
from those in effect on November 1,1964 enough to address the need for emergency
to obtain a declaratory judgment from a relief if such a stay is granted. We there-
three-judge panel of the United States fore deny defendant-intervenors' motion
District Court for the District of Colum- for interim elections.
bia holding that the change "does not Nothing we say or do in this memoran-
have the purpose and will not have the dum or the accompanying order is intended
effect of denying or abridging the right to preclude any party from seeking in an-
to vote on account of race or color" be- other jurisdiction the relief sought by the
fore the new practice could be imple- emergency motion filed here by defendant-
mented. intervenors.
McCain v. Lybrand, 104 S.Ct. at 1044. It
is beyond question that the change here is
an election practice different from that in
effect on November 1, 1964.
4. In order to rebut the inference of
discriminatory effect, plaintiffs here were
Kenneth JOHNSON, Plaintiff,
required to prove that the at-large election
system in Sumter County will not "lead to v.
a retrogression in the position of racial The Honorable Richard
minorities with respect to their effective ZURZ, Defendant.
exercise of the electoral franchise." Beer and
v. United States, 425 U.S. 130, 140, 96
Gregory MITCHELL, Plaintiff,
S.Ct. 1357, 1363, 47 L.Ed.2d 629 (1976).
They have not done this. Neither have v.
they carried the heavy burden they bear as The Honorable Richard V. ZURZ and
to the purpose of this change. Plaintiffs Referee James Gill, Defendants.
are re< uired to demonstrate the absence of Nos. C 82-1534A, C 82-1805.
discriii inatory purpose; and section 5 pre-
United States District Court,
clearance must be denied if the evidence
N.D. Ohio, E.D.
fails t > disprove that a discriminatory pur-
pose tas present as a motivating factor May 30, 1984.
amon^ other legitimate non-discriminatory
ones. City of Richmond v. United States, Indigent filed a class action for injunc-
422 U S. 358, 378, 95 S.Ct 2296, 2307, 45 tive and declaratory relief on his behalf and
569
ETHNIC EMPLOYEES OF LIBRARY OF CONGRESS v. BOORSTIN 1405

Cite as 751 TM 1405 (1985)
1. Judgment =>678(2), 707
ETHNIC EMPLOYEES OF the Persons who are not parties to action
LIBRARY OF CONGRESS, et ordinarily are not bound by judgment in
al., Appellants action; nonparties to action are in "privity"
with party, and therefore bound by judg-
ment, only when relationship between one
Daniel J. BOORSTIN, et al.
or more persons is such that judgment
involving one of them may justly be conclu-
ETHNIC EMPLOYEES OF the
sive upon others, although those others
LIBRARY OF CONGRESS, et
were not parties to lawsuit
al., Appellants
2. Judgment =>949(4)
Daniel J. BOORSTIN, Librarian Although employee organization offi-
of Congress. cers included among their allegations in
earlier action some assertions that they
Nos. 84-5092, 84-5093.
were discriminated against as officers of
United States Court of Appeals, organization, officers' complaint, alleging
District of Columbia Circuit. civil rights violations, fairly read, did not
disclose that officers brought action on be-
Argued Nov. 16, 1984. half of organization, and thus, claim preclu-
Decided Jan. 11, 1985. sion did not bar organization's civil rights
violation claims in subsequent action. Civil
Rights Act of 1964, 717, as amended, 42
Ethnic employees organization and U.S.CA. 2000e-16; U.S.C.A. Const.
several of its officers and members Amends. 1, 5.
brought action against Librarian of Con-
gress, Library of Congress and United 3. Civil Rights =>32(1)
States. The United States District Court Employee organization neither ex-
for the District of Columbia, Norma Hollo- hausted its administrative remedies nor of-
way Johnson, J., dismissed claims, and or- fered any legally adequate excuse for its
ganization appealed. The Court of Ap- failure to do so, prior to bringing action
peals, Wald, Circuit Judge, held that: (1) against Library of Congress, et alia, where
claim preclusion did not bar other organiza- even assuming that equal opportunity pro-
tion members or organization from litigat-
gram coordinator told members that he
ing constitutional issues which two organi-
zation officers previously unsuccessfully would not receive discrimination com-
asserted; (2) claim that defendants violated plaints, Library's regulations and its appar-
Civil Rights Act by denying organization ent past practice gave members and organi-
privileges granted to other recognized em- zation ample reason to understand that co-
ployee organizations was properly dis- ordinator's position did not represent Li-
missed for failure to exhaust administra- brary policy, but nonetheless, organization
tive remedies; (3) constitutional claims did not submit administrative complaint or
which merely restated claims cognizable un- even protest in writing. Civil Rights Act
der Title VII were properly dismissed; and of 1964, 717, as amended, 42 U.S.CA.
(4) direct proof of Library's discriminatory 2000e-16.
motive was not required element of organi-
zation's prima facie Title VII case. I. Civil Rights =13.12(3)
Constitutional claims by federal em-
Affirmed in part; reversed in part and ployee organization against Library of Con-
remanded. gress that simply restated claims of racisil.
570
ethnic, or other discrimination cognizable of same protected group or groups were

under Title VII, or claims of retaliation for not required to conform to disputed regula-
invocation of Title VII rights, were properly tion, would be sufficient to establish prima
dismissed. Civil Rights Act of 1964, 717, facie case, thus shifting burden of produc-
as amended, 42 U.S.C.A. 2000e-16. tion to Library. Civil Rights Act of 1964,
701 et seq., as amended, 42 U.S.C.A.
5. Civil Rights <3=>12.3 2000e et seq.
Assertion that Library of Congress
punished employee organization and its 8. Federal Civil Procedure =>2544, 2546
members for their constitutionally protect- In ruling on motion for summary judg-
ed criticism of Library policies and that ment, district court is required to deter-
Library required disclosure of organiza- mine whether movants showed absence of
tion's membership as condition of official any genuinely disputed issue of material
recognition, and that organization members fact, rather than requiring plaintiff to es-
had some due process right to continue tablish prima facie case by preponderance
recognition of their organization, fell out- of evidence.
side scope of Title VII, and thus, were not
required to be dismissed as employment
discrimination claims actionable only under Appeals from the United States District
Title VII. U.S.C.A. ConstAmends. 1, 5; Court for the District of Columbia (Civil
Civil Rights Act of 1964, 701 et seq., as Action Nos. 80-2163 & 82-2264).
amended, 42 U.S.C.A. 2000e et seq. Joel D. Joseph, Washington, D.C., for
appellants.
6. Administrative Law and Procedure John W. Polk, Asst. U.S. Atty., Wash-
=>5 ington, D.C., with whom Joseph E. diGeno-
Library of Congress is not "agency" va, U.S. Atty., Royce C. Lamberth, R.,
under Administrative Procedure Act. 5 Craig Lawrence and Michael J. Ryan, Asst
U.S.C.A. 551(1). U.S. Attys., and Lana Kay Jones, Asst.
See publication Words and Phrases Gen. Counsel, Library of Congress, Wash-
for other judicial constructions and ington, D.C., were on brief, for appellee.
definitions.
Before WALD, EDWARDS and BORK,
Circuit Judges.
7. Civil Rights *43
Direct proof of discriminatory motive Opinion for the Court filed by Circuit
on part of Library of Congress was not Judge WALD.
required element of employee organiza-
tion's prima facie Title VII case; proof that
organization was a protected group under WALD, Circuit Judge:
Title VII, that it sought continued official In these two consolidated cases, an or-
recognition from Library and qualified for ganization called the Ethnic Employees of
recognition under all uniformly enforced the Library of Congress (EELC) and sever-
standards, but was denied recognition un- al of its officers and members appeal from
der disputed regulation, and that other ap- summary judgment dismissing claims
plicants seeking continued recognition for against the Librarian of Congress, the Li-
their organizations who were not members brary of Congress, and the United States.1
1. In No. 84-5092, the EELC and seven officers the EELC and two of its officers, who are also
and members sued the Librarian of Congress, parties in No. 84-5092, sued the Librarian of
the Library, and the United States. See Com- Congress. See Complaint, No. 84-5093, R. Item
plaint, No. 84-5092, R. Item 1. In No. 84-5093. 1. All plaintiffs in both actions have appealed.
571

Cltcu7SIF.2dl40S (198S)
In its first action, No. 84-5092, the EELC ment, whether a Title VII plaintiff may
alleged that the Library violated section succeed at trial in establishing a prima
717 of Title VII of the Civil Rights Act of facie case. We therefore vacate summary
1964, 42 U.S.C. 2000e-16, and the first judgment on the Title VII claims in No.
and fifth amendments to the Constitution 84-5093 and remand those claims, together
by denying the EELC privileges granted to with the constitutional claims that may be
other recognized employee organizations. maintained apart from Title VII, for fur-
The district court held that because two ther proceedings.
EELC officers unsuccessfully asserted con-
stitutional claims based on similar discrimi- I. No 84-5092
nation in a previous lawsuit, claim preclu-
sion barred other EELC members and the A. Background
organization itself from litigating the con- The EELC is an organization of Library
stitutional issues in this case. The district employees "dedicated to promoting non-dis-
court then dismissed the Title VII claims criminatory treatment of ethnic and racial
for failure to exhaust administrative reme- minorities at the Library." Affidavit of
dies. See Ethnic Employees v. Boorstin, George E. Perry H 3, R. Item 7.1 In 1973,
Civ. Nos. 80-2163 & 82-2264, slip op. at 4-5 George E. Perry, then an employee of the
(D.D.C. Dec. 20, 1983) [hereinafter cited as Library and an appellant in both of the
District Court Op.]. We find that claim cases before us today, founded the EELC.
preclusion does not bar the constitutional Id. UH 2-3. The Library agrees that from
claims in No. 84-5092 and remand those 1973 until approximately April of 1981, the
claims for further proceedings. We affirm EELC complied with Library of Congress
the district court's dismissal of the Title Regulation [hereinafter cited as LCR]
VII claims in that case. 2022-2 (1975), which governs the official
The EELC's second action, No. 84-5093, recognition and conduct of cultural and so-
was filed after the Library withdrew recog- cial organizations composed of Library em-
nition of EELC as an official employee ployees. Affidavit of Doris E. Pierce fl 6,
organization. The EELC alleged that the R. Item 15, Exhibit 5.
Library's decision discriminated on the ba- However, the two principal officers of
sis of national origin in violation of Title the EELC, George E. Perry and Howard
VII, and also violated the first and fifth R.L. Cook, have both been involved in nu-
amendments. The district court dismissed merous controversies with the Library ad-
the constitutional claims on the ground that ministration, some of which related to ac-
Title VII is the exclusive remedy for tivities they conducted in connection with
charges of discrimination in federal em- the EELC. In 1974, Perry, the president of
ployment. It then held that the EELC the EELC, was suspended without pay for
could not make out a prima facie case ninety days based on various charges of
under Title VII. District Court Op. at 5-7. misconduct, among them the authorship of
We find that Title VII is the exclusive a published letter that was highly critical
remedy for some but not all of the EELC's of Library policies. See Affidavit of
constitutional claims, and we therefore af- George E. Perry 114, R. Item 7. Perry
firm in part and reverse in part the district alleges that the Library subsequently
court's constitutional holding. We find in opened mail addressed to him as president
addition that the district court misstated of the EELC, unsuccessfully pressured him
the appropriate standard for determining, not to testify against the nomination of
on a defendant's motion for summary judg- Daniel J. Boorstin as Librarian of Con-
See Notice of Appeal, No. 84-5092, R. Item 22; 2. Record citations in Part I and Part II of this
Notice of Appeal, No. 84-5093, R. Item 12. opinion are to the record in No. 84-5092 and
For brevity, we refer to appellants in both the record in No. 84-5093 respectively.
actions as "EELC," and to appellees in both
actions as "the Library."
572
gress, and otherwise harrassed him. In ment and discrimination were some that
1977, the Library discharged Perry, in part described Library efforts to impede actions
for allegedly making false and malicious Cook and Perry took on behalf of the
statements about another Library employ- EELC and the BELC, and retaliation
ee. against Cook and Perry based on those
Cook, the vice president of the EELC, actions. The district court dismissed the
has been involved in similar controversies. action on February 11, 1980. Cook v.
Some of these have apparently centered on Boorstin, Civ. No. 78-2312 (D.D.C. Feb. 11,
his activities on behalf of the EELC and 1980) [hereinafter cited as Cook II.]. It
the Black Employees of the Library of Con- ruled that Title VII was the exclusive judi-
gress (BELC), a separate employee organi- cial remedy for claims of discrimination in
zation not involved in these lawsuits.3 Oth- federal employment, and the plaintiffs
ers centered on Cook's and Perry's individ- therefore could not assert claims under the
ually expressed opposition to various Li- first and fifth amendments. Because Cook
brary actions and policies. In July of 1977, and Perry were unwilling to proceed only
Cook was suspended without pay for al- on their Title VII claims, those claims were
legedly making statements similar to those also dismissed. Id. This court dismissed
for which Perry was discharged. Cook and Perry's appeal on the grounds
that they had waived their Title VII claims,
Cook and Perry have previously brought and that the judgment against them in the
two lawsuits concerning these events. One court of claims was res judicata as to their
of these actions, brought in the United other statutory and constitutional claims.
States Court of Claims against the United See Cook v. Boorstin, No. 80-1288 (D.C.
States, challenged the statutory and consti- Cir. Sept. 11, 1981) (disposition reported at
tutional validity of the Library of Congress 670 F.2d 1234).
regulation under which Perry was dis- The EELC, Perry, Cook, and five other
charged and Cook was suspended. Perry members of the EELC brought the first of
also argued that in any event, discharge the consolidated actions involved in this
was an unduly harsh punishment for his appeal on August 22, 1980. See Complaint,
conduct. The court rejected these claims R. Item 1. They asserted claims against
and granted summary judgment for the the Librarian of Congress, the Library, and
United States. Cook v. United States, No. the United States under section 717 of Title
100-80C, mem. at 2, 5-6 (Ct.Cl. Mar. 13, VII of the Civil Rights Act of 1964, 42
1981) (disposition reported at 652 F.2d 70), U.S.C. 2000e-16, and the first and fifth
cert denied, 454 U.S. 894, 102 S.Ct. 390, 70 amendments. The complaint alleged that
L.Ed.2d 208 (1981) [hereinafter cited as the Library had attempted to gain access to
Cook / ] . the EELC's membership list, denied its re-
In February of 1979, Cook and Perry quest for office space, and refused it other
brought another action in the United States services generally provided to recognized
District Court for the District of Columbia organizations. See Complaint H 14, R. Item
against the Librarian of Congress. This 1. The complaint also alleged that the
action sought damages, rescission of the Library refused the EELC's request for a
disciplinary measures imposed on Cook and dues checkoff system, id. 1115; interfered
Perry, and wide-ranging equitable relief. with the relationship between the EELC
Among the many allegations of mistreal- and the BELC, id. 11 16; and took actions
3. According to documents filed by the appel- commented that the BELC "had been a labor
lants, Howard R.L. Cook is the executive di- organisation .. . When the provisions of [for-
rector of the BELC, and George E. Perry is one mer LCR 2022-2] were superseded by the is-
of its officers. See Affidavit of George E. Perry suance of LCR 2026, BELC unsuccessfully
flfl 3-4, R. Item 7. The relationship between the sought exclusive recognition in the representa-
BELC and the EELC was apparently among the tion election." Letter from Doris E. Pierce to
sources of friction between the Libiary and the George E. Perry at 2 (Apr. 29, 1980), R. Item 15,
EELC. A letter from a Library officer to Perry Exhibit 7.
573

a t e u 7SI F.2d I40S (1985)
with the purpose and effect of suppressing affected by the judgment through or un-
criticism by EELC members of Library pol- der one of the parties, i.e., either by inheri-
icies, see id. HV 24-26. Finally, the com- tance, succession, or purchase.'" Id. at 406
plaint asserted that "EELC members are (quoting Comment Privity and Mutuality
deprived of the right to have the effective in the Doctrine of Res Judicata, 35 Yale
assistance of the organization in the pro- LJ. 607, 608 (1926)) (emphasis in original).
cessing of personnel grievances within the Instead, the district court concluded that
Library," id. H 28, allegedly in violation of EEIX3 members "had an undisclosed inter-
the fifth amendment est" in the suit Cook and Perry previously
The district court concluded that the brought in the district court. District
EELC was in privity with the Cook II plain- Court Op. at 4. We interpret this ruling to
tiffs, and that the EELC's claims were the mean that Cook and Perry had in effect
same, for purposes of claim preclusion, as previously sued as representatives for
those asserted in Cook II. It therefore EELC's members.4
held that res judicata barred the EELC's The complaint in Cook II, however, does
constitutional claims. The court then dis- not suggest that Cook and Perry were su-
missed the Title VII claims for failure to
ing in a representative capacity. Cook and
exhaust administrative remedies. District
Perry were the only plaintiffs of record,
Court Op. at 4-6.
and that fact alone strongly suggests that
the district court erred in finding that they
B. Preclusion of the Constitutional
acted in a representative capacity:
Claims
The traditional representation rules be-
[11 Persons who are not parties to an
gin with a showing that the prior action
action ordinarily are not bound by the judg-
was brought by or against a party who
ment in the action. See 1 Restatement of
was acting in a representative capacity.
Judgments, Second 34(3) (1981). Nonpar-
It is not alone enough that the party had
ties to an action are said to be in "privity"
a representative capacity, as for example
with a party and therefore bound by a
a trustee of an express trust. If there is
judgment only when, under any of several
no indication in the pleadings or other-
related but distinct exceptions to the gener-
al rule, "the relationship between one or wise that the action involved the repre-
more persons is such that a judgment in- sentative capacity, it must be treated as
volving one of them may justly be conclu- an individual action. As with other mat-
sive upon the others, although those others ters of modern pleading and procedure,
were not party to the lawsuit" Gil & however, it should be sufficient to show
Duffus Servs., Inc. v. Islam, 675 F.2d 404, that the action was in fact tried and
405 (D.C.Cir.1982) (per curiam) (citation decided as one that involved the repre-
omitted). sentative capacity of a party.
18 C. Wright, A. Miller & E. Cooper, 18
There is no claim in this case that all Federal Practice and Procedure 4454 at
EELC members are in "privity" with Cook 459 (1981) (footnote omitted).8
and Perry "under the traditional definition
of the term; they are not persons who [2] We think that Cook and Perry's
'claim[] an interest in the subject-matter complaint, fairly read, does not disclose
4. In other contexts, the district court's phrase 5. See also 1 Restatement of Judgments, Second
might be understood to mean that the EELC 36(1) (1982); id. comment b ('The essential
had controlled the earlier litigation, which question is whether there is a disclosed relation-
could lead to the application of issue preclusion ship in which the party is accorded authority to
against it. See, e.g., Montana v. United States, appear as a party on behalf of others."); IB J.
440 U.S. 147, 153-55, 99 S.Ct. 970, 973-74, 59 Moore, J. I.ucas & T. Currier, Moore's Federal
L.Ed.2d 210 (1979). However, the district court Practice H 0.411(3.1] at 417-18 (1984).
did not so find, and the record at the present
stage of the proceedings would not appear to
support such a conclusion.
574
that they were suing on behalf of the Finally, we note that strong policy con-
EELC. It is true that the complaint does siderations support our reluctance to look
include, among its many allegations, some beyond the gravamen of the complaint and
assertions that Cook and Perry were discri- the district court's opinion for isolated
minated against as officers of the EELC.* hints that Cook and Perry acted in a repre-
Similarly, among the fifteen paragraphs sentative capacity. EELC members other
specifying the relief requested appears a than Cook and Perry were not protected by
prayer "[t]hat the Library be ordered to any of the procedural safeguards that are
refrain from its divers acts of harrassment, required in class actions. See Fed.R.Civ.P.
intimidation and obstruction of Plaintiffs 23. Holding Cook II to have been a de
and their organizations coincident with or- facto class action would thus risk serious
ganizational activity." Complaint 1112 at inequity to EELC members who, even had
20, Cook II, R. Item 12, Exhibit 3. But the they known of the lawsuit, would have had
allegations relating to the EELC in the little reason to suppose that their rights
were being adjudicated. Moreover, the
complaint are clearly intended to describe
rules governing the preclusive conse-
part of a broader campaign of harrassment
quences of suits brought by an unincorpo-
and discrimination that the Library alleged- rated association are quite complex, and
ly undertook against Cook and Perry. To may vary depending on whether the associ-
the extent that the Library's allegedly ille- ation brought suit as a jural entity in its
gal acts against the EELC were directed at own right or as a representative of its
Cook and Perry personally, they could members' rights. See Fed.R.Civ.P. 17(b)(l)
properly be complained of in their individu- (unincorporated association may sue to en-
al actions. Nor is there any sign in the force substantive federal right); Fed.R.
record before us that the truncated pro- Civ.P. 23.2 (suit by unincorporated associa-
ceedings in Cook II were conducted as tion may proceed as class action); 1 Re-
though that case was a representative law- statement of Judgments, Second 35 &
suit The district court's opinion treated comment d (1982); id. reporter's note to
Cook and Perry's sudden abandonment of comment d at 357 (authorities on res judica-
their Title VII claims as a decision properly ta effect of representative suit brought by
left entirely to them. That stance, while unincorporated association are "in a state
appropriate in an individual action, would of profound confusion and discord"); 18 C.
be questionable in an action that deter- Wright, A. Miller & E. Cooper, Federal
mined the Title VII rights of all other Practice and Procedure 4456 (1981). The
EELC members as well. Similarly, this Library asks us to draw highly questiona-
court's memorandum in Cook II plainly as- ble inferences from scattered allegations in
sumes that the lawsuit was in fact exactly a complaint brought by two individuals;
what it purported to be in form: an action decide exactly what rights of the EELC
asserting claims by two individuals. See and its members were at issue in the re-
sulting "inferred" representational lawsuit;
Cook v. Boorstin, No. 80-1288 (D.C.Cir.
and then determine the preclusive conse-
Sept. 11, 1984) (disposition reported at 670
quences of that lawsuit for the case before.
F.2d 1234).7
6. See Complaint Hfl 3, 5, 15(j), 24-28, 30(a), thus no basis for holding that Cook and Perry
31(aMb). 36. 44-45, 49-50, 73, 79, 81, 84, 87, represented EELC in Cook I.
Cook II. R. Item 12, Exhibit 3. In addition, we note that the appellate holding
7. The Library argues in this court, as it did in in Cook II rested entirely on the preclusive ef-
the district court, that Cook-1 as well as Cook II fect of Cook I. To apply claim preclusion in this
bars the EELC's constitutional claims in No. case would require us to rule that, despite this
84-5092. The opinion of the court of claims in fact, the preclusive consequences of Cook II
Cook I, however, makes it absolutely plain that reach far beyond any reasonable view of the
the court was dealing with nothing more than a preclusive consequences of Cook I. The facts of
challenge by iwa employees to disciplinary this case do not require so anomalous a result.
measures imposed by the Library. There is
575
ETHNIC EMPLOYEES OF LIBRARY OF CONGRESS v. BOORSTIN 14 H

Cite M 751 R2d 1409 (I9S9)
us. We prefer the more straightforward days following filing of the administrative
course of reading the Cook II complaint to complaint, if no final action has been taken
assert complaints only on behalf of the within that time. See 42 U.S.C. 2000e-
named plaintiffs.* 16(c); Nordell v. Heckler, 749 F.2d 47 (D.C.
Cir. 1984). As this court said in Kizas v.
C. The Title VII Claims: Exhaustion of Webster, 707 F.2d 524 (D.C.Cir.1983), cert.
Administrative Remedies
Section 717 of Title VII of the Civil denied, U.S. , 104 S.Ct 709, 79
Rights Act of 1964, which was added by L.Ed.2d 173 (1984):
section 11 of the Equal Employment Oppor- Congress did not casually impose the
tunity Act of 1972, Pub.L. No. 92-261, 86 requirement that a person charging vio-
Stat. 103, 111, expressly prohibits employ- lation of Title VII by a federal agency
ment discrimination against employees of initiate his or her complaint with the
the Library of Congress on the basis of agency. Nor is the requirement a techni-
race, color, religion, sex, or national origin. cality. Rather, it is part and parcel of
See 42 U.S.C. 2000e-16(a). Section 717(c) the congressional design to vest in the
authorizes a Library employee to bring suit federal agencies and officials engaged in
under Title VII after 30 days following hiring and promoting personnel "primary
notice of final action on an administrative responsibility" for maintaining nondis-
complaint of discrimination, or after 180 crimination in employment.
8. A final major question posed by association lion in the first litigation, apparent consent to
representation goes to litigation that is con- be bound, apparent tactical maneuvering, or
ducted by some members rather than the as- close relationships between the parties," such as
sociation itself. For most cases, it should be that between family members. 18 C. Wright, A.
clear that mere common membership does Miller & E. Cooper, Federal Practice and Proce-
not create power in one member to represent dure 4457 at 498-99 (1981) (footnotes omit-
others. Preclusion of other members is likely ted) (collecting cases); see, e.g., United States v.
to be achieved, if at all, on the theory of Geophysical Corp., 732 F.2d 693, 697-98 (9th
virtual representation . . . Cir.1984) (collaterally estopping limited part-
18 C. Wright, A Miller & E. Cooper, Federal ners and partnership based on previous litiga-
Practice and Procedure 4456 at 493 (1981). tion by general partner).
The doctrine of virtual representation has a
highly uncertain scope, see id. 4457 (1981); cf. Even if we were to adopt an expansive view of
2 Restatement of Judgments, Second 62 virtual representation as the law of this circuit,
(1982) ("Conduct Inducing Reliance on an Adju- we would be unwilling to hold that the interests
dication"), and the parties have not discussed it of the Cook II plaintiffs were "closely aligned"
in their briefs. Perhaps the broadest statement with the interests of the EELC and its members
of the doctrine is in Aerojet-Central Corp. v. in the present case In a way that justifies preclu-
Askew, 511 F.2d 710 (5th Cir.). appeal dismissed sion. As we discuss in the text, neither the
and cert, denied, 423 U.S. 908, 96 S.Ct. 210, 46 pleadings in Cook II, see Oneida Indian Nation v.
L.Ed.2d 137 (1975), in which the Fifth Circuit New York. 732 F.2d 261, 266 (2d Cir.1984), nor
declared that "(ujnder the federal law of res anything we know about the conduct of that
judicata, a person may be bound by a judgment litigation, cf. Jackson v. Hayakawa, 605 F.2d
even though not a party if one of the parties to 1121, 1126 (9th Cir.1979), cert, denied, 445 U.S.
the suit is so closely aligned with his interests as 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980), nor
to be his virtual representative." Id. at 719 anything we know about the factual relation-
(citations omitted). That court qualified this ship between the Cook II plaintiffs and other
statement in Pollard v. Cockrell, 578 F.2d 1002 EELC members, see Aerojet, 511 F.2d at 719-20,
(5th Cir.1978), which held that "[vjirtual repre- suggests that the Cook II plaintiffs can fairly be
sentation demands the existence of an express regarded as acting on behalf of the EELC and
or implied legal relationship in which parties to all of its members. Moreover, any such holding
the first suit are accountable to non-parties who would raise serious questions as to whether the
file a subsequent suit raising identical issues." Cook II plaintiffs adequately represented the
Id. at 1008; cf. Southwest Airlines Co. v. Texas EELC in their conduct of that litigation and, if
Ml Airlines, Inc., 546 F.2d 84, 97 & n. 50 (5th not, whether the EELC and its members are
Cir.) (noting "inconsistent" and confusing char- nonetheless bound. See 1 Restatement of Judg-
acter of doctrine), cert, denied. 434 U.S. 832, 98 ments, Second 42(1 )(e) (1982); 18 C. Wright,
SCt. 117, 54 L.Ed.2d 93 (1977). In general, A. Miller & E. Cooper, Federal Practice and
cases in which courts have based preclusion on Procedure 4457 at 502 (1981).
virtual representation have involved special fac-
tors such as "substantial elements of participa-
576
Id. at 544 (quoting 42 U.S.C. 2000e-16(e)) disbelieved Cook's and Perry's affidavits,
(citations omitted). or regarded them as an insufficient excuse
The district court dismissed the Title VII for the failure to file an administrative
claims in No. 84-5092 for failure to exhaust complaint.
administrative remedies. The court noted In Kizas, this court commented that:
that sections 6D and 12 of LCR 2010-3.1 Because Congress has unambiguously
specifically provide that an organization directed federal employment discrimina-
may file a complaint of discrimination.' tion complainants to proceed first before
Cook and Perry submitted affidavits to the the agency charged with discrimination,
district court claiming that the coordinator
we have grave doubts whether any futili-
of the equal opportunity program at the
ty doctrine can be stretched to sanction
Library repeatedly told them that Library
court adjudication of a Title VII action
regulations do "not allow organizations to
file complaints of discrimination concerning when no party to the action has ever
discrimination against the organization." filed an initial charge with the agency.
Affidavit of Howard R.L. Cook H 3, R. Item 707 F.2d at 544-45 (footnote omitted). Sim-
9; see also Affidavit of George E. Perry ilarly, in Siegel v. Kreps, 654 F.2d 773
113, R. Item 9. The coordinator during the (D.C.Cir.1981), we rejected a federal em-
relevant time filed an affidavit stating that ployee's argument that his failure to file a
he had "no knowledge of having made" the timely administrative complaint of discrimi-
statements attributed to him in Cook's and nation was excused by reasonable reliance
Perry's affidavits. Affidavit of Thomas C. on erroneous advice from a Civil Service
Brackeen H 4, R. Item 12, Exhibit 5. The Commission supervisory employee. The
Library also submitted a 1976 letter from Siegel court disagreed with the employee's
the coordinator accepting a "third party" contention that, on the facts of that case,
discrimination complaint filed by Cook, an- he justifiably relied on the erroneous advice
other person, and the BELC. Letter from allegedly given, but the court went on to
Thomas C. Brackeen to James R. Barnett note that:
(May 6,1976), R. Item 12, Exhibit 4. In the Even if appellant had established a jus-
Library's view, the letter demonstrates tifiable reliance on [the supervisory em-
that it does accept organizational com- ployee's] alleged erroneous advice, he
plaints, and that Cook was aware of this would, at most, be entitled to a waiver of
policy. The district court evidently either the time limits for the initiation of a
9. District Court Op. at 5. Section 6D of LCR A. Such allegations shall be filed, in writ-
2010-3.1 (1974) provides: ing, directly with the Coordinator, who shall,
If an allegation of discrimination is filed by upon accepting the same . . . assign them to
a group of grievants reflecting an individual an Equal Opportunity Officer.
complaint which they have in common, and it B. In so filing, the organization or other
otherwise satisfies the requirements of this third party shall state the allegations with
section, it shall be accepted for processing sufficient specificity so that the Officer may
under this Regulation as a single complaint, fully investigate it. The Officer may require
with a joint investigation and, if necessary, a such additional specificity as necessary to pro-
joint hearing If the allegation filed by ceed with the investigation.
the group does not reflect an individual com- Section 717(a) of Title VII, 42 U.S.C. 2000e-
plaint which they have in common, it shall be 16(a), protects "employees and applicants for
treated as a third party allegation and pro- employment" from illegal discrimination. Sec-
cessed under Section 12, below. tion 701(f), 42 U.S.C. 2000e(f), defines "em-
Section 12 of LCR 2010-3.1 (1974) provides in ployee" as "an individual employed by an em-
part: ployer," with certain exceptions. In light of
This Section shall apply to general allega- these provisions, we interpret the EELC to argue
tions by organizations, or other third parties, on behalf of its members that measures taken
of discrimination in personnel matters within against the organization have resulted in prohib-
the Library which are unrelated to an individ- ited discrimination against the members.
ual complaint of discrimination. These shall
be considered third party allegations and shall
be processed as follows:
577
ETHNIC EMPLOYEES OF LIBRARY OF CONGRESS Y. BOORSTIN 1413

ate M 751 FJd 1409 (IMS)
complaint with the administrative agency nator's alleged defiance of Library regula-
rather than to the right to institute a civil tions. In these circumstances, we hold that
action. Congress intended that adminis- the district court correctly concluded that
trative agencies should have an opportu- the EELC had neither exhausted its admin-
nity to consider a federal employee's dis- istrative remedies nor offered any legally
crimination claim, because such a process adequate excuse for its failure to do so.
promotes dispute resolution through ac- The Library was therefore entitled to sum-
commodation rather than through litiga- mary judgment on the EELC's Title VII
tion. While waiver of the time limits for claims in No. 84-5092.
initiating an administrative complaint
through the administrative process . . .
might have been available to the appel- II. No. 84-6093
lant, he never requested such a waiver. A. Background
Accordingly, we need not decide whether
such a waiver, had it been requested, The EELC's second lawsuit against the
should have been granted. Library arises from the Library's decision
Id. at 778 n. 14 (citations omitted). to terminate its recognition of the EELC as
an employee organization. On April 29,
[3] Here, as in Siegel, the Title VII 1980, a staff relations officer of the Li-
complainant argues not that principles of brary of Congress formally informed Per-
equity excuse the failure to file a timely ry, as president of the EELC, that the
administrative complaint, but rather that
Library was considering withdrawal of rec-
we should entirely dispense with the re-
ognition from the organization. The Li-
quirement of an administrative complaint.
Cf. Bethel v. Jefferson, 689 F.2d 631, 640- brary's letter suggested that the EELC
47 (D.C.Cir.1978). This we will not do on might have violated LCR 2022-2 by failing
so slight an excuse as the facts of this case to conduct its affairs in an orderly manner
offer. Even assuming that the coordinator and in accordance with democratic princi-
of the Library's equal opportunity program ples, and by infringing upon the exclusive
told Cook and Perry that he would not rights of labor organizations." The letter
receive complaints of discrimination asked that Perry provide various items of
against an organization, the Library's regu- information to assist the Library in decid-
lations and its apparent past practice, of ing whether the EELC was entitled to con-
which Cook had personal experience, cer- tinued recognition, including a membership
tainly gave Cook, Perry, and the EELC list See Letter from Doris E. Pierce to
ample reason to understand that the coordi- George Perry (Apr. 29, 1980), R. Item 7,
nator's position did not represent Library Exhibit 7. A lively correspondence fol-
policy. Nonetheless, the EELC did not ac- lowed between the EELC and the Library,
tually submit an administrative complaint, see R. Item 7, Exhibits 8-16, during which
or, so far as the record indicates, even the Library explained that it required only
protest in writing to the coordinator or to a list of at least fifty EELC members on
anyone else at the Library about the coordi- the Library staff and not a full member-
10. Section 4A of LCR 2022-2 (1975) provides in (5) it provides proof of membership of not
part: less than 50 employees of the Library of Con-
When applying for recognition under this gress
Regulation, an organization shall provide evi- Section 4C of LCR 2022-2 (1975) provides in
dence that it meets the following criteria: part:
The Director of Personnel . . . may with-
(2) it is organized and open to all staff draw recognition of any organization when:
members on a Library-wide basis, but is not a (1) it fails to meet or to conform with the
labor organization as defined by LCR 2026; requirements of this Regulation, as set out in
A. above; or
(4) it is organized to conduct its affairs in (2) its activities infringe upon the exclusive
an orderly manner and in accordance with functions and rights of labor organizations
democratic principles and practices;
578
ship list, see Letter from Doris E. Pierce to Cook (July 28, 1982), R. Item 1, Exhibit 3.
Joel D. Joseph (June 20, 1980), R. Item 7, The EELC sued the Library on August 11,
Exhibit 8; Letter from Doris E. Pierce to 1982, asserting that the Library's version
George E. Perry at 2 (Mar. 26, 1981), R. violated the first and fifth amendments and
Item 7, Exhibit 12. The EELC refused to Title VII.
supply such a list, claiming that the Li-
brary's effort to force partial disclosure of B. The Constitutional Claims: The Ef-
its membership list violated the first fect of Brown v. General Services Ad-
amendment. See Letter from George E. ministration
Perry to Doris E. Pierce at 1 (Apr. 5,1981), The thrust of the EELC's first amend-
R. Item 7, Exhibit 16. On September 16, ment argument is that the Library's with-
1981, the Director of Personnel at the Li- drawal of recognition denied the EELC ac-
brary informed the EELC that its recogni- cess to Library facilities "on an equal basis
tion was withdrawn. He stated that: with other groups." Complaint H 16, R.
[The EELC has] continually sought to Item 1. This denial, the EELC alleged,
encroach upon rights granted exclusively was based upon the enforcement of "dis-
to the recognized labor organizations and criminatory and unconstitutional require-
you have not satisfied Staff Relations ments," and had the purpose and effect of
that you have a "membership of not less suppressing the EELC's criticisms of Li-
than 50 employees of the Library of Con- brary policies. Id. 111117-18. The EELC
gress," as required by LCR 2022-2, Sec- also alleged that the Library had deprived
tion 4A(5). Scarce benefits are extended EELC members of the effective assistance
to organizations that meet the latter cri- of their organization in the processing of
terion on the basis that a substantial personnel grievances, in purported contra-
number of Library employees are being vention of the fifth amendment, id. 1120;
served by the organization. To give and that the Library had in some way
those benefits to an organization which denied the EELC equal protection of the
we have no reason to believe holds annu- laws, id. II 21.
al membership meetings and consists of
at least 50 Library staff members, would [4] The district court dismissed these
be a wasteful expenditure of the Li- claims, relying on Brown v. General Ser-
brary's resources. vices Administration, 425 U.S. 820, 96
S.Ct. 1961, 48 L.Ed.2d 402 (1976), which
Letter from Louis R. Mortimer to George
held that for federal employees, " 717 of
E. Perry at 1 (Sept. 16, 1981), R. Item 1,
the Civil Rights Act of 1964, as amended,
Exhibit 1. Evidently the EELC administra-
provides the exclusive judicial remedy for
tively appealed this decision. See Com-
plaint 111, R. Item 1. When that appeal claims of discrimination in employment."
failed, Cook, Perry, and the EELC filed an Id. at 835, 96 S.Ct. at 1969. Brown rested
administrative complaint of discrimination on the Court's view that
on behalf of the EELC and its members. The balance, completeness, and struc-
R. Item 1, Exhibit 2. The Library ultimate- tural integrity of 717 are inconsistent
ly refused to accept the complaint because with the . . . contention that the judicial
the EELC allegedly declined, after re- remedy afforded by 717(c) was de-
peated requests, to support the complaint signed merely to supplement other puta-
with specific enough facts to make an ef- tive judicial remedies.
fective investigation possible.11 See Letter Id. at 832, 96 S.Ct at 1967. The Court's
from Donald C. Curran to Howard R.L. discussion showed particular concern over
11. See LCR 2010-3.1 12B (1974) (quoted su- of an administrative complaint, followed by its
pra note 9). The record does not contain details alleged failure to provide additional informa-
of the Library's request for further information tion, constituted adequate exhaustion of admin-
and the responses, if any, of the EF.LC. We istrative remedies.
express no opinion on whether the EELC's filing
579

Cite u 7SI FM 1409 (1989)
the possibility that litigants might evade Burns, 427 U.S. 347, 96 S.Ct. 2673, 49
"the rigorous administrative exhaustion re- L.Ed.2d 547 (1976); Clark v. Library of
quirements and time limitations" of section Congress, 750 F.2d 89 at 94-95, (D.C.Cir
717 by recasting Title VII claims as claims 1984). Similarly, the EELC claims that the
under other statutes and so frustrate the Library cannot require disclosure of its
legislative policies underlying Title VII. membership as a condition of official recog-
See id at 833, 96 S.Ct. at 1968; see also nition, cf, e.g., Buckley v. Valeo, 424 U.S.
Great Am. Federal Savings & Loan Ass 'n 1, 15, 24-25, 96 S.Ct. 612, 632, 637, 46
v. Novotsky, 442 U.S. 366, 372-78, 99 S.Ct. L.Ed.2d 659 (1976) (per curiam); Gibson v.
2345, 2349-52, 60 L.Ed.2d 957 (1979) (depri- Florida Legislative Investigation Comm.,
vation of right under Title VII cannot form 372 U.S. 539, 543-44, 83 S.Ct. 889, 892, 9
basis for suit under 42 U.S.C. 1985(3)). L.Ed.2d 929 (1963), and that EELC mem-
Allowing federal employees to recast their bers have some "due process" right to the
Title VII claims as constitutional claims continued recognition of their organization.
would clearly threaten those same policies. Whatever their merits may be, these asser-
For that reason, this circuit has repeatedly tions clearly fall outside the scope of Title
held that federal employees may not bring VII, and thus could not form the basis for
suit under the Constitution for employment an administrative complaint under that
discrimination that is actionable under Title statute. See Porter v. Schweiker, 692 F.2d
VII.11 Thus, the district court properly 740 (11th Cir.1982) (federal employee not
dismissed those constitutional claims that required to file administrative complaint
simply restated claims of racial, ethnic or before challenging discharge allegedly
other discrimination cognizable under Title based on constitutionally protected criti-
VII, or claims of retaliation for the invoca- cisms of superior, since EEOC lacked pow-
tion of Title VII rights." er to investigate such a complaint).
Brown's inquiry into the legislative history
[5] However, not all of the EELC's con- of section 717 focused on whether federal
stitutional claims could be asserted in a employees should be able to bring parallel
Title VII lawsuit. For example, the EELC actions under both Title VII and other pro-
alleges that the Library has punished the visions of federal law to redress the same
EELC and its members for their constitu- basic injury. Nothing in that history even
tionally protected criticisms of Library poli- remotely suggests that Congress intended
cies. Cf, e.g., Connick v. Myers, 461 U.S. to prevent federal employees from suing
138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); their employers for constitutional violations
Branti v. Finkel, 445 U.S. 507, 100 S.Ct. against which Title VII provides no protec-
1287, 63 L.Ed.2d 574 (1980); Elrod v. tion at all.14 We intimate no view as to the
12. See Kizas v. Webster, 707 F.2d 524, 542 (D.C. ployer in case were federal agency, first amend-
Cir.1983) (fifth amendment claim based on race ment claim for retaliatory discharge prohibited
and sex discrimination barred), cert, denied, by Title VII would be barred).
U.S. , 104 S.Ct. 709, 79 L.Ed.2d 173 (1984);
Lawrence v. Stasis, 665 F.2d 1256, 1257, 1259 13. See Porter v. Adams, 639 F.2d 273, 277-78
(D.C.Cir.1981) (fifth amendment claim based on (5th Cir.1981) ( 2OOOe-16 prohibits retaliation
race discrimination would be barred if 717 against federal employee invoking Title VII
applied); Torre v. Barry, 661 F.2d 1371, 1372. rights).
1374 (D.C.Cir.1981) (firth amendment claim
based on race discrimination barred); Hofer v. 14. See Hampton v. Mow Sun Wong, 426 U.S. 88,
Campbell, 581 F.2d 975. 976, 978 (D.C.Cir.1978) 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976) (discussed
(fifth amendment claim based on national ori- with respect to 717 in Davis v. Passman, 442
gin discrimination barred), cert, denied, 440 U.S. 228, 247, 99 S.Ct. 2264, 2278, 60 L.Ed.2d
U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); 846 (1979)); Ray v. Nimmo, 704 F.2d 1480, 1485
Richardson v. Wiley, 569 F.2d 140, 141 (D.C.Cir. (11th Cir.1983) ( 7 1 7 does not foreclose federal
1977) (per curiam) (fifth amendment claim employee's suit for deprivation of constitution-
based on race discrimination barred); cf. Morris ally protected property interest without due pro-
v. Washington Metropolitan Area Transit Auth., cess); Brosnahan v. Eckerd, 435 F.Supp. 26, 28
702 F.2d 1037, 1039-40 (D.C.Cir. 1983) (if em- (D.D.C.1977); cf. Davis v. Passman. 442 U.S
580
likelihood that the EELC will prevail on burden as a prepondrance [sic] of the
constitutional claims for which Title VII evidence does not establish that defend-
could not provide a remedy. We do, how- ants enforced [the regulation] in a dis-
ever, hold that Congress did not intend for criminatory manner with a discriminato-
Title VII to displace those claims, and ry intent. Rather, it is apparent that
therefore remand them to the district court defendants required all employee organi-
for further proceedings. zations to meet the requirements of LCR
2022-2.
C. The Title VII Claims
District Court Op. at 6-7 (citations omit-
[6,7] Finally, the district court dis- ted). We believe this passage reflects a
missed the EELC's Title VII claims based misunderstanding of both the elements of a
on the withdrawal of recognition for failure prima facie case under Title VII and the
to establish a prima facie case.15 The dis- appropriate allocation of burdens on a mo-
trict court stated that:
tion for summary judgment.
The Supreme Court characterized plain-
tiffs' burden of establishing a prima fa- In Texas Department of Community
cie case of disparate treatment as "oner- Affairs v. Burdine, 450 U.S. 248, 101 S.Ct.
ous." Under this "onerous" burden, 1089, 67 L.Ed.2d 207 (1981), the Supreme
plaintiffs must prove by a preponderance Court commented that "[t]he burden of es-
of the evidence that (1) they are mem- tablishing a prima facie case of disparate
bers of a minority group; (2) the Li- treatment is not onerous." Id. at 253, 101
brary's request for a membership list of S.Ct. at 1093 (emphasis added). When a
at least fifty members was not applied Title VII plaintiff alleges that an employer
equally across the board, and (3) the dis- has discriminatorily refused to hire him,
criminatory application of [the Library the Court has described the appropriate
regulation requiring disclosure of at allocation of burdens as follows:
least fifty members who are Library em- A plaintiff alleging one instance of dis-
ployees] was done with a discriminatory crimination establishes a prima facie case
motive. Plaintiffs have not met their justifying an inference of individual ra-
228, 246-47, 99 S.Ct. 2264, 2277-78, 60 L.Ed.2d dure Act. But even if we were to consider a
846 (1979) (implied cause of action and dam- "nonstatutory" claim properly before us, see
ages remedy under fifth amendment against generally W. Gellhorn, C. Byse, P. Strauss, Ad-
congressman not foreclosed by 717, where ministrative Law: Cases and Comments 919-23
717 does not cover congressional employee). (1979); L. Jaffe, Judicial Control of Administra-
tive Action 152-96 (1965), we would still not be
15. The EELC also claimed that the Library's required to decide what review might conceiva-
decision was arbitrary and capricious in viola- bly be available to the EELC. Cf. Ringer v.
tion of the Administrative Procedure Act, 5
U.S.C. 702. In Kissinger v. Reporters Comm. Mumford, 355 F.Supp. 749 (D.D.C.1973) (enjoin-
for Freedom of the Press, 445 U.S. 136, 100 S.Ct. ing Librarian of Congress from appointing Reg-
960, 63 L.Ed.2d 267 (1980), the Supreme Court ister of Copyrights without following Library
noted that the Library of Congress is not an regulations). The EELC has met the Library's
agency under the Freedom of Information Act. efforts to prove even-handed enforcement of its
Id. at 145, 100 S.Ct. at 695; see 1 J. O'Reilly, regulation only with claims that the Library
Federal Information Disclosure 5.02 at 5-5 acted from motives prohibited by Title VII and
(1984); cf. 36 C.F.R. 703.1 (1984). As the the Constitution. We think that even assuming
definition of an agency in the Freedom of Infor- the EELC could assert an action for nonstatuto-
mation Act, 5 U.S.C. 552(e), incorporates the ry review that does not repeat the substance of
definition of an agency under the Administra- its Title VII and constitutional claims, it has
tive Procedure Act, 5 U.S.C. 551(1), it follows failed to raise a genuine issue of material fact
that the Library is not an agency under the that might allow that action to succeed. To the
Administrative Procedure Act. The district extent that an action for nonstatutory review
court was therefore correct in granting summa- would simply cover the same ground as the
ry judgment for the Library on the claim under EELC's Title VII and constitutional claims, it is
that act. entirely superfluous in this case.
The EELC has pursued its claim that the Li-
brary applied LCR 2022-2 arbitrarily and capri-
ciously only through the Administrative Proce-
581

Cite u 751 FJd 1403 (19*5)
cial discrimination by showing that he (1) facie case under Title VII. Cf. Krodel v.
belongs to a racial minority, (2) applied Young, 748 F.2d 701, 709 (D.C.Cir.1984)
and was qualified for a vacant position (age discrimination claim applying Title VII
the employer was attempting to fill, (3) framework); Freeman v. Lewis, 675 F.2d
was rejected for the position, and (4) 398, 400 (D.C.Cir.1982) (stating Title VII
after his rejection, the position remained prima facie burden in discriminatory refus-
open and the employer continued to seek al to promote claim); Bundy v. Jackson,
applicants of the plaintiffs qualifica- 641 F.2d 934, 951 (D.C.Cir.1981) (same).
tions. Once these facts are established, The district court evidently required di-
the employer must produce "evidence rect proof of discriminatory motive as an
that the plaintiff was rejected, or some- element of the plaintiffs prima facie case.
one else was preferred, for a legitimate, This was error. See U.S. Postal Serv. Bd.
non-discriminatory reason." [Burdine, of Governors v. Aikens, 460 U.S. 711, 714
450 U.S. at 254, 101 S.Ct at 1094], At n. 3, 103 S.Ct. 1478, 1481 n. 3, 75 L.Ed.2d
that point, the presumption of discrimina- 403 (1983); Krodel, 748 F.2d at 707-08 &
tion "drops from the case," id., at 255 n. nn. 4-5. Proof of the four elements
10 [101 S.Ct. at 1095 n. 10], and the sketched above would be sufficient to estab-
District Court is in a position to decide lish a prima facie case and thus shift the
the ultimate question in such a suit: burden of production to the Library in the
whether the particular employment deci- way Cooper describes.
sion at issue was made on the basis of
race. The ultimate burden of persuading [8] The district court also remarked that
the trier of fact that the defendant inten- the plaintiffs had failed to establish a prima
tionally discriminated against the plain- facie case by a preponderance of the evi-
tiff regarding the particular employment dence. District Court Op. at 7. In ruling
decision "remains at all times with the on the Library's motion for summary judg-
plaintiff," [id. at 253, 101 S.Ct. at 1093], ment, however, the court was required to
and in the final analysis the trier of fact determine whether the movants had shown
"must decide which party's explanation the absence of any genuinely disputed is-
of the employer's motivation it believes." sue of material fact See, e.g., Williams v.
United States Postal Service Board of Washington Area Metropolitan Transit
Governors v. Aikens, 460 U.S. [711, 716, Auth., 721 F.2d 1412, 1414-15 (D.C.Cir.
103 S.Ct 1478, 1482, 75 L.Ed.2d 403 1983). Elsewhere in its opinion, the district
(1983) ]. court referred to the standards governing
Cooper v. Federal Reserve Bank, U.S. summary judgment motions, see District
Court Op. at 2, and perhaps its reference to
, 104 S.Ct 2794, 2799, 81 L.Ed.2d 718
a preponderance of the evidence was mere-
(1984) (citations omitted). These standards
ly a verbal slip. If the district court indeed
can be readily adapted to the EELC's claim.
found that the EELC had not established
We think that if EELC members could
any genuinely disputed issue over the Li-
show that (1) they belong to a protected
brary's allegedly discriminatory enforce-
group under Title VII; (2) they sought
ment of LCR 2022-2, then it properly dis-
continued official recognition from the Li-
missed the Title VII claim under the frame-
brary for their organization and qualified
work sketched above.
for recognition under all uniformly en-
forced standards; (3) they were denied rec- If these Title VII claims were the only
ognition under the disputed regulation; claims on appeal, we might feel constrained
and (4) other applicants seeking continued to review the factual record for ourselves
recognition for their organizations who to determine if such an issue exists. How-
were not members of the same protected ever, in light of our remand on other claims
group or groups were not required to con- in these cases, we prefer to vacate the
form to the disputed regulation, the EELC district court's holding on the Title VII
members would have established a prima claims in No. 84-5093 and allow it to recon-
582
sider its ruling. Our remand rests entirely grams at company's mines. The Federal
on our misgivings about the district court's Mine Safety and Health Review Commis-
formulation of the relevant legal principles, sion ruled in favor of coal company, and
and implies no view whatever as to the organization sought judicial review. The
appropriate disposition of this case. Court of Appeals, Harry T. Edwards, Cir-
cuit Judge, held that coal company did not
CONCLUSION violate Federal Mine Safety and Health Act
In No. 84-5092, we reverse the district by refusing to allow nonemployee repre-
court's ruling that claim preclusion pre- sentatives of coal miners to monitor safety
vents the EELC from asserting its constitu- training programs on mine property.
tional claims, and remand those claims for Affirmed.
further proceedings. We affirm summary
judgment for the Library on the Title VII
claims. Mines and Minerals =>92.6
In No. 84-5093, we affirm summary Mine operator did not violate Federal
judgment for the Library on the Adminis- Mine Safety and Health Act of 1977 by
trative Procedure Act claim, and on those refusing to allow nonemployee representa-
tives of coal miners to monitor required
constitutional claims for which Title VII
safety training programs on mine property;
provides a sufficient remedy. We reverse
representative's argument that it could not
summary judgment on the remaining con-
effectively exercise its statutory and regu-
stitutional claims and remand for further latory rights without concomitant monitor-
proceedings. We vacate summary judging right was properly addressed to Secre-
ment for the Library on the Title VII tary of Labor, rather than courts. Federal
claims and remand for further proceedings. Coal Mine Health and Safety Act of 1969,
So Ordered. 105(cKl), 115, as amended, 30 U.S.C.A.
815(cXl), 825.
Petition for Review of an Order of the

Federal Mine Safety & Health Review
Commission.
L. Thomas Galloway, Washington, D.C.,
COUNCIL OF the SOUTHERN for petitioner.
MOUNTAINS, INC., Petitioner, Jack W. Burtch, Jr., Richmond, Va., for
v. respondents, Martin County Coal Corp.
FEDERAL MINE SAFETY & HEALTH James A. Lastowka and L. Joseph Ferrara,
REVIEW COMMISSION, et al., Washington, D.C., entered appearances for
Respondents. respondent, Federal Mine Safety & Health
Review Com'n.
No. 84-1092.
United States Court of Appeals, Before WALD, EDWARDS and BORK,
District of Columbia Circuit. Circuit Judges.
i
Argued Nov. 16, 1984. Opinion for the Court filed by Circuit
Decided Jan. 15, 1985. Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
Coal miners' organization brought ac- This case presents the question whether
tion challenging coal company's refusal to a mine operator violates section 105(c)(l) of
permit it to monitor safety training pro- the Federal Mine Safety and Health Act of
583
SUPREME COURT BRIEFS WHERE SOLICITOR GENERAL BORK

1. General Electric Co. v. Gilbert. 429 U.S. 125 (1976). Bork's

amicus brief argued that employment discrimination based on
pregnancy violated Title VII of the Civil Rights Act of 1964.
Six Justices rejected this argument. In 1978, Congress adopted
Bork's position when it amended Title VII to prohibit
discrimination on the basis of pregnancy.
(Amicus)
2. Vorchheimer v. Philadelphia. 430 U.S. 703 (1977), where the

offerings, and said the Court should not reach the question
whether such schools are unconstitutional even if educational
offerings were equivalent. The Court was equally divided and
issued no opinion.
(Amicus)
3. Corning Glass v. Brennan, 417 U.S. 188 (1974), a landmark

"Equal Pay Act" case which ruled that men could not be paid more
than women for similar jobs on different shifts.
584

1. Runvon v. McCrary, 427 U.S. 160 (1976), which affirmed that
Section 1981 applied to racially discriminatory private
contracts.
(Amicus)
2. Lau v. Nichols. 414 U.S. 563 (1974), which ruled that Title
VI and possibly the 14th Amendment reached actions discriminatory
in effect, even where the actions were not intentionally
discriminatory.
(Amicus)
3. Fitzpatrick v. Bitzer, 427 U.S. 445 (1975). The United

States, as amicus, successfully argued that the 14th Amendment
effected a basic change in the constitutional relationship
between state and national governments and that Section 5 of that
Amendment gives Congress complete power to remedy violations of
that Amendment, including the power to abrogate sovereign
immunity.
(Amicus)
4. Alexander v. Gardner-Denver Co.. 415 U.S. 36 (1974), which

held that an employee may sue in court under Title VII employment
discrimination statute even though the Union had lost on the
issue of discrimination in arbitration.
(Amicus)
585
5. Albemarle Paper Co. v. Moody. 422 U.S. 405 (1975), which made
it significantly easier for plaintiffs to prove employment dis-
crimination claims on the basis of a discriminatory "effects"
test.
(Amicus)
6. Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). As

in Albemarle. Bork's amicus brief successfully urged the Supreme
tions.
(Amicus)
7. Beer v. United States. 425 U.S. 130 (1976), Solicitor General

minority voting strength, the plan nonetheless had a discrimina-
tory "effect" because other proposed plans would have done more
to increase the influence of minority voters. The Supreme Court
(per Justice Stewart) (5-3) rejected Bork's expansive interpreta-
tion of the Voting Rights Act. Instead, the Court held that the
Act was satisfied so long as the new electoral scheme did not
further dilute the minority vote.
8. Washington v. Davis. 426 U.S. 229 (1976), Bork unsuccessful-

ly argued that employment tests having a discriminatory "effect"
violated Title VII.
-2-
586
9. Teamsters v. United States. 431 U.S. 324 (1977), the Supreme

systems violated Title VII if they perpetuated the effects of
prior discrimination.
10. Pasadena Board of Education v. Spangler, 427 U.S. 424

(1976), Bork argued that a school district which had already
faithfully implemented a wide-spread busing plan could be re-
quired by a court to achieve a more perfect racial balance. The
court disagreed, holding that the lower court's action directly
contradicted Supreme Court precedent foreclosing the use of
busing to achieve perfect racial balance.
11. United Jewish Orqanizations v. Carey, 430 U.S. 144 (1977),

strength.
12. Virginia v. United States, 420 U.S. 901 (1975). In this

case Bork successfully urged the Court to hold that the State of
Virginia was not entitled to be relieved of the special burdens
imposed by Section 5 of the Voting Rights Act.
-3-
587
Senator HATCH. I have provided a copy of that for Senator Metz-
enbaum, who had asked for it.
Well, Judge, it has been a long 4 days and I appreciate your pa-
tience. We have heard your 1971 Indiana Law Journal article re-
peatedly quoted, along with your other academic writings and
speeches.
For years you were a professor. Now, let me ask you this. Are
not professors paid to be provocative, to create interest by specula-
tion and speculating on alternatives and innovations in the law?
Judge BORK. Yes, they are, Senator. But I must say that if profes-
sors are paid to be provocative and speculative, I was underpaid for
what I did. [Laughter.]
Senator HATCH. I agree. But I think the country has benefited a
great deal because of the proliferation of your writings and your
other works. As a Judge you have said that you accept legal opin-
ions. You were criticized as a professor in this particular case.
Now, as a judge you said you accept legal opinions. Some have
brought out that now you are accepting some legal opinions that
you have criticized.
Judge BORK. I accept them as settled law. I have not said that I
agree with all of those opinions now, but they are settled law and
as a judge that does it for me.
Senator HATCH. Most of the criticisms that we have found here
have been because of your criticisms of opinions that you made
while you were a professor; is that right?
Senator HATCH. Or somebody in charge of professional duties
such as a law firm, or even a Solicitor General. And I have not
heard too many of your approaches criticized as Solicitor General,
except for the firing of Archibald Cox.
What would happen if academics had to give the same respect to
precedent as do judges?
Judge BORK. Well, I would think that it would dry up academic
writing. Nobody wants to sit around and write articles and say,
that is a wonderful opinion and that is another wonderful opinion.
You usually only write about doctrines that are coming into the
law which you think are wrong or questionable or at least require
closer examination.
Some people go back and re-examine the rationale of Marbury v.
Madison, which established judicial review in 1803. That is all
right as an academic. I do not happen to do that. I happen to think
Marbury v. Madison was correctly decided. But some people do do
that.
But I cannot imagine anybody who did that, if he got on a court,
saying he was going to overrule Marbury v. Madison. This just is
not done.
Senator HATCH. On the flip side, what if all the judges were as
free wheeling in these cases as academics are?
Judge BORK. Well, you would have a chaotic legal system, and
you would also have, I think, a legal system that had become politi-
cized.
Senator HATCH. Actually, I think the point that we are bringing
out here is that there is a real difference in the roles that you have
held through the years.
588
Judge BORK. There is a difference between a practitioner, which
I was. There is a difference between that and a professor, which I
was. There is a difference between that and the Solicitor General,
which I was. And they are all different from being a judge.
Senator HATCH. Well, we have had some here criticize you for
changing positions when in fact what you have really been doing is
changing various roles in the legal practice or legal profession in
our society. Yesterday we went through a rather lengthy discussion
of how imminent a subversive speech must be before the first
amendment protects it. Now, this is a technical line-drawing exer-
cise, it seems to me, in the law.
Some judges and some cases draw the line in one place and some
judges and some cases draw them in another.
Judge BORK. The Supreme Court has had three different posi-
tions on that issue over the years.
Senator HATCH. And academics from all sides have criticized
those positions one way or the other.
Senator HATCH. And it is actually the duty of the judge to draw
varying lines. In other words, to protect the constitutional value
that we are trying to protect. That is what judges do. Academics
can sit back and criticize and find fault or sustain or find support
for some of these viewpoints.
Judges do follow precedent. They follow a whole line founded
years before and academics are constantly seeking for new lines
new ways of solving their conjectural approaches, new ways of
maybe re-drawing the lines in ways in which they should not have
been drawn in the first place. I think that is a fair statement. Do
you feel that the distinction between judge and academic explains
the distinctions between you as a professor and you as a judge
explain apparent inconsistencies, but in fact, may not even be in-
consistent, but are merely changes in roles?
Judge BORK. I think it does, yes. No, that is right. I have not re-
visited many areas I have written about. If I did, I might well con-
tinue my philosophical criticism of those things, but that has noth-
ing to do with the fact that they are law and, as a judge, I am not a
philosopher. I am a judge.
Senator HATCH. Well, as a judge, will you continue to obey the
rules of judging, regardless of your past professional views or pro-
fessorial views?
Judge BORK. Of course, of course, and if I went back to being a
professor, I would follow my professorial instincts, rather than
what I did as a judge.
Senator HATCH. Well, I think your 5x/2 years on the bench have
proven that to be true. In other words, based once again on the pre-
sumption that actions speak louder than words, I would like to just
compare your actions, as a judge, with some of the words of your
critics, as they have been raised over the last month or so. Have
you ever, as an appellate judge, invalidated a civil rights statute of
any sort?
Judge BORK. NO, I have applied them. As Solicitor General, I
never argued to invalidate one or ever cast doubt upon one.
Senator HATCH. Well, if you listen to your critics talk, you would
believe that you had struck down every civil rights law you re-
589
viewed. In fact, during your tenure on the D.C. Circuit Court of Ap-
peals, you have, in every instance, upheld civil rights laws, includ-
ing title VII, the Equal Pay Act, the Voting Rights Act, and, I
think, in a manner consistent with, or broader than, Supreme
Court decisions. Is that a fair statement?
Judge BORK. It is certainly consistent with. I do not know if it is
broader than. I just do not have that judgment in my mind at the
moment.
Senator HATCH. My interpretation, as I have read those, is that
they are certainly consistent with, and I believe they are broader
than, present interpretations of our present Supreme Court, which
many are very pleased with. In your years on the D.C. Circuit, you
have had dozens of opportunities to construe civil rights statutes, is
that correct?
Judge BORK. Well, dozensI do not know, Senator. I really have
not kept account.
Senator HATCH. And we have brought out, in all but two of these
civil rights cases, you have sided with the minority or with female
plaintiffs on those cases.
Judge BORK. All but one of those cases. There was an additional
casewhich I was reminded of by Senator Humphrey, I had forgot-
ten itin which I ruled against an age discrimination plaintiff.
Senator HATCH. But even if you accept that case, again, in both
of those cases, the Supreme Court and Justice Powell agreed with
you. Is that right?
Judge BORK. AS I recall.
Senator HATCH. That is my recollection, too, and they deter-
mined that the law required a ruling against the minority plain-
tiffs in those two cases. That is my resolution of it, as I saw it. But,
I think it is valuable maybe to deal with specifics on some of these
things. Would you sketch, for the committee, the issues in the
Sumter County v. U.S. case? This was a South Carolina voting
rights case, decided in 1983 by your circuit.
Judge BORK. That was not by our circuit, Senator. That kind of
case calls for a three-judge district court.
Senator HATCH. Right, this was a three-judge
Judge BORK. And our practice is to put one Court of appeals'
judge and two district court judges down in the courtroom to hear
the case.
Senator HATCH. Okay.
Judge BORK. Sumter County had moved from a method of select-
ing their county council from a district voting to an at-large voting
system and the Attorney General had refused to clear that under
the Voting Rights Act. They are required to go and get clearance
from the Department of Justice. If they cannot get clearance, then
they go to court and challenge it and say they are entitled to clear-
ance.
They had basically two arguments. As I recall, one was that they
were not required to pre-clear because they had already had it once
before or something of that sort. We ruled against them on that.
That was sort of a factual legal issue. The other thing they had to
establish was that the at-large system was not adopted with the
intent or the effect of diluting black voting strength and we ruled,
on the evidence, that they had failed to prove that it did not have
86-974 0 - 8 9 - 2 1
590
that intent or effect and so we ruled against the Sumter County
Council and for the blacks who wanted a districting system again
instead of an at-large election system.
Senator HATCH. That is right and have you had an opportunity
to study the views of Justice Powell on the Voting Rights Act?
Judge BORK. No, I have not.
Senator HATCH. Well, let me just go through it. Now, keep in
mind, I thought he was a great judge and justice.
Judge BORK. Oh, I think there is no doubt about that.
Senator HATCH. I think most people conclude that he was so this
is not by way of criticism of him, but merely to show the position
that you have. It may be of interest to the committee to realize
that Justice Powell, unlike you, Judge Bork, has continually criti-
cized expansive interpretations of the Voting Rights Act. In fact,
Justice Powell voted against minority plaintiffs in 17 out of 25
voting rights cases that he decided.
I think I have concluded, or I am beginning to conclude, that my
critical colleagues might not have confirmed Justice Powell if he
were sitting in your shoes today. But, in fact, our memory may be
hasty, but Justice Powell was opposed by some selective civil rights
groups when he came before the Senate in 1971. After all, he fa-
vored many narrower constructions of the Civil Rights laws than
you have.
Judge BORK. Yes, but I think, as we both agree, Justice Powell is
a great justice and I think it should be said that these are matters
about which reasonable men can differ.
Senator HATCH. That is my point.
Judge BORK. In interpreting those statutes. I do not want to con-
trast myself with Justice Powell in order to show that I am a great-
er defender of civil liberties. These are legal issues and reasonable
men can differ.
Senator HATCH. I agree. But it is a useful experience to have you
contrasted. The reason I am doing it is because the argument was
first made that we have to have balance on the Court and there-
fore, to lose Justice Powell and to get somebody who may be more
conservativewhich I do not think is necessarily the case hereI
think it is a fallacious argument. I think these matters, if you
really look at the facts and your actions, which speak louder than
the words of some of those who have been critics of you, you find
that you stand in very good stead with regard to some of the criti-
cisms that have been lodged against you.
Let me just continue a little bit more. Could you describe the
Palmer v. Shultz case? Now, that concerned gender discrimination
in the Foreign Service.
Judge BORK. Was that the one in which we used statistical evi-
dence to show discrimination?
Senator HATCH. This was the one where you granted summary
judgment to the Government in a suit by a female Foreign Service
officer, alleging discriminations in promotions. It was an Equal Pay
Act case. You voted against the Government and reinstated that
particular Equal Pay Act case.
Judge BORK. Just a second here, Senator, so I can refresh myself
a little bit.
591
Senator HATCH. It was the one where you based your decision
solely upon statistical evidence.
Judge BORK. Oh, yes. That was a recent case.
Senator HATCH. Yes. In fact, there was Ososky v. Wick as well.
Ososky v. Wick was a similar case where you also voted to reverse
another district court case and applied the Equal Pay Act to the
Foreign Service's merit system. In both of those cases, you found
inferences of intentional discrimination which could be based solely
on statistical evidence. Now, the reason I am pointing this out is
these are hardly cases where you could be shown to be walking in
lockstep with this administration.
You ruled against the Government in both cases and you ruled
against the Government on the basis of arguments that the Presi-
dent himself would probably not approve. So, it is clear that you
were making no special efforts to impress President Reagan when
you made those decisions.
Judge BORK. I probably was not making an effort to impress him
either, when I held that the man had a first amendment right to
put up a poster in the subway ridiculing him. He may not have
liked that.
Senator HATCH. That poster has just gone up, by the way. Well,
let's turn to Laffey v. Northwest Airlines. This concerned the appli-
cability of the Equal Pay Act to airline stewardesses. In that in-
stance, you found that female stewardesses may not be paid less
than male pursers.
Judge BORK. Since the jobs were essentially equivalent.
Senator HATCH. That is right. Now, the airlines were, by you,
found to have discriminated against females in that particular
case, against women. The Supreme Court refused certiorari in that
case, in essence, allowing that particular decision by you to stand.
Women out there should not be afraid of Judge Bork because your
actions speak louder than the criticisms of your critics. These are
cases of record.
Judge BORK. Not only that, Senator, but I do not know where the
criticism comes from because I have never spoken or written hos-
tilely about women.
Senator HATCH. That is for sure and that is what bothers me
about some of the things that have been stated here. They state
these broad-brushed generalities but apparently, have not read
your cases or have not looked at what you have done or have not
seen what your actions have been. In other words, in the hysteria
of being afraid of having somebody they brand "conservative" on
the Court, it seems to me there is a wholesale misrepresentation of
what you stand for and what your actions have really been. You
have to resent that. I resent it. I think it is an abomination and yet
that is the type of rhetoric you are getting in this manner.
To return to your record on the bench, we could examine case
after case which would show an inclination to uphold civil rights.
Let me take just one other case and that is the case of Emory v.
Secretary of the Navy. That involved the application of civil rights
review to the Navy's promotion decisions, if you will recall that
case.
Judge BORK. I do. It was recent.
592
Senator HATCH. Well, you reversed a district court's opinion in
that case. Why don't you tell us about it.
Judge BORK. That was a black naval officer, a captain as I recall,
who had left the Navy and then he sued, claiming that while he
was in the Navy, he was denied promotion to admiral because the
promotion board was all white and he did not getsimilar to a
claim that they select an all-white jury and so forth. This case was
dismissed by the district court, as I recall, because he had, by leav-
ing the Navy, he had taken himself outside the pool from which
admirals are drawn. We reversed because he was claiming an
action in the past, when he was still in the pool, of racial discrimi-
nation. So we reversed the district court and told him to reinstate
the lawsuit.
Senator HATCH. That was the appropriate thing to do. You stated
that "the military has not been exempted from constitutional pro-
visions that protect the rights of individuals. It is precisely the role
of the courts to determine whether those rights have been violat-
ed." I submit, that is hardly the language one would expect from
one who has been accused of closing the courts to civil rights claim-
ants. It is another case that shows that you have really upheld civil
rights claimants. Your opinion, which of course, reversed judges sit-
ting on the lower court who sincerely decided the case as best they
could.
Judge BORK. Oh, sure. That was a motions panel. It would have
been very easy just to affirm without opinion.
Senator HATCH. Sure. But your opinion opened up, it seemed to
me, the military to judicial scrutiny.
Judge BORK. Well, I do not think opened it up any more than it
properly is and has been. We disavowed any intention of trying to
litigate whether somebody should have been promoted or not,
except where he claims his promotion was denied him for unconsti-
tutional reasons.
Senator HATCH. Well, but once again it seems to me that the ac-
cusations do not justify the squaring with the reality of your ac-
tions or your actual judicial record. It is interesting to note how
many of these cases, the Palmer case, the Wick case, the Emory
case, were cases in which you voted to reverse a lower court which
had ruled against civil rights plaintiffs. I find that a striking con-
sideration. The special interest groups opposing you, purport to
review your record based only on a small fraction of the cases that
you have heard and these were the non-unanimous cases. They
only comprise about 14 percent of your total cases.
Judge BORK. Yes and I do not know how many of those were civil
rights cases, come to think of it.
Senator HATCH. Well, that is right. Those cases that I just de-
scribed were all excluded upon review because the three-judge
panels were unanimous, despite the fact that the lower court had
ruled the other way. Again, it shows the bigoted bias on the part of
those who did the reviews of your record. It shows how they have
tried to scuttle your nomination, I think, for very inappropriate
reasons. They have ignored what your record really is. That both-
ers me a lot and it has got to bother anybody who is fair in this
country. It certainly has got to bother you.
593
If you look at other cases, such as Norris v. D.C. where you re-
jected a district court's attempt to dismiss a plaintiffs complaint of
mis-treatment or Doe v. Weinberger where you ruled against the
Government and ensured that a homosexual was accorded full due
process rights. Those are important cases. They may be just every-
day affairs to you, where I think you came out very, very well
against your critics. In fact, I think in all your cases, you came out
pretty doggone well against your critics.
Your critics have not come out well in these hearings, nor have
they come out well given your answers, nor have they come out
well on the facts. They have distorted the facts. They have misused
statistics. They have distorted your opinions. Why are they doing
this? They cannot attack your intellect. They cannot attack you as
a good judge. They cannot attack your ethics. They cannot attack
your work effort. I guess the only way they can do it is unfairly.
That is really what it comes down to and when it is attacked
that way, when you are attacked that way, that is what I call pure
and simple politics. That is really what is involved here. I think
that is what is coming out. I think your actions speak a lot louder
than their words and frankly, you have consistently voted to pre-
serve fundamental constitutional rights. I do not think there is any
question about that. You agree with that, don't you?
Judge BORK. I agree with that.
Senator HATCH. Well, I think anybody would who reads the
record.
Judge BORK. I think the reaction suggests that I should disagree
in order to be provocative.
Senator HATCH. I am glad you can honestly agree because the
fact of the matter is, your record speaks louder than the criticisms
of your critics. I think your testimony is a powerful rebuttal. Your
record is a powerful rebuttal to those who would contend that you
are a judicial activist or that you would bend legal principles to
meet your political needs or ideology or objectives. When you had
the opportunity to do that in the busing case, you rejected it. You
did what was right.
You rejected employing the Katzenbach case, which was right
there for you. It was a Supreme Court decision. You could easily
have done it and you could have gotten rid of something that con-
servatives have felt was wrong in America for a long time, includ-
ing some liberals who feel it is wrong in America. And you could
have done it in a whole wide variety of other cases.
The CHAIRMAN. Excuse me, Senator.
Senator HATCH. Yes.
The CHAIRMAN. DO you think you could have done that and been
constitutionally consistent with the requirement to follow prece-
dent?
Judge BORK. Could have done which?
The CHAIRMAN. That was not my question though. My question
was
Judge BORK. Oh, I see. Katzenbach v. Morgan was a precedent. I
was not a judge at this time. I am not talking about my role as a
judge.
The CHAIRMAN. Oh, I thought you were talking about your own
opinion.
594
Judge BORK. No, I was writing something in support of a bill that
would have not eliminated, but would have reduced the amount of
busing and it would have been easy, in that argument, to say the
bill is constitutional because Katzenbach v. Morgan says you can
change the Constitution by statute. I just rejected that approach,
explicitly, in the argument.
Senator HATCH. I would also like to place in the record several
articles relative to the events of October 20, 1973, a news article by
Milton Viorst and an extract of a book by Benvenista, an article by
Evans and Novack and several other articles on that subject, if I
could, Mr. Chairman?
The CHAIRMAN. HOW long is the extract of the book, though?
Could we just have that
Senator HATCH. It is about 5 or 6 pages.
The CHAIRMAN. Oh, fine. I thought you were going to put a
whole book in there. Following the admonitions of the ranking
member. He always cautions me against spending taxpayers'
money to that extent.
Senator HATCH. I may be just as concerned about taxpayers'
money as you.
The CHAIRMAN. I am not suggesting you are not.
Senator HATCH. But certainly not as much as the
The CHAIRMAN. Without objection, they will be in the record.
[Material follows:]
595
1 ORIGINAL *
i. DEPARTMENT OF JUSTICE
2
3 TRESS CONFERENCE
4 OF
5 HONORABLE ROBERT 11. BORK.
6 ACTING ATTORNEY GENERAL OF
7 THE UNITED STATES
0 ACCOMPANIED BY .
9 KR. KE2JRY PETERSEN, ASSISTANT ATTORNEY GENERAL
10 WITH
11 MEMBERS OF THE PRESS
12
13
14
15
16
17 4:15 o'clock p.m.
18 October 24, 1973
19 Deputy Attorney General's Conference Room
20 Washington, D. C.
21 _ _ -
22
22
596
.Acting Attorney General Robert H. Bork responded to question* on the

following topics at Ma press conference on Wednesday, October 24, 1973.
SUBJECT PAGE
Possible court fight with White House over data , 6
Commitments from the White House regarding 7, 18, 19, 22,
additional evidence 23, 29, 30
Court of Appeals ruling over tapes 8
The agreement offered to Archibald Cox 8, 9, 10
Appointment of a new Special Prosecutor 15, 16
Special Prosecutor appointed by Congress 21
Procedures and mechanisms to restore public trust 15, 16, 20
Status of Special Prosecutor Cox's staff 16
Political alignment of Special Prosecutor Cox's staff 17, 24
Rehiring of Cox 17
Nomination of Mr. Bork to be Attorney General 19
Resignation of the Acting Attorney General 19
Role of Solicitor General in suits against White House 20
Ethics of Solicitor General litigating against White House 21
Operation of Regulation of Departmental Succession 23, 26
White House notification of court compliance 23
Watergate investigation parameters 24
Watergate related probes 24, 25
Personal reputation on Watergate probe 25, 26
Tenure as Acting Attorney General - 30-day rule 26
Acting Attorney General's authority to fire Cox 27, 28
Justice Department resignations 28
Procedures for obtaining evidence 28
Assistant Attorney General Henry Petersen responded to questions on the
following topics at press conference:
SUBJECT " PAGE
Status of the Watergate investigation 11
White House access to investigative files 12
Petersen's April 15 meeting with the President 13
Testimony before Kleindienst hearings , , 14
Appointment of a Special Prosecutor 14
597
7.CTINrt ATTOPJlKY r.J-'l.XRV*ttOJKC:. This Is a rather
innronpru prsna conference end I Jicvc jo .prepared statement,
do licve .a list of pointn that 1 vent -to -talk about. I may
r a n M u a bit zosd 2 msy leave out a poir.t,. but .1 an -sure your
quisticnicq will clarify that.
TThat I went to discuss with you is why I obeyed the
President's order -to discharge the Special Prosecutor, Archiba!
Ccx, what say intentions axe with respect to_ -the Department
prosecutions and with .respect to tits Department of Justice in
general. . .
1 suppose I can bsst start; by discussing the events
ef lest Saturday. Until lste last, Saturday, afternoon, I was r.c
invclve<3 in* these natters at ell. . I had, upon two cr three,
occasions, I suppose, discuss&d jurisdiction^ problems cencsrr.
ing ihs Special Prosecutor Fores with Ellict Kich&rdscn, nd
upen occasion, perhsps two occasions, with Archibald Co: and sdr
of his staff. But I did not hncv the details of -what the jurirh
dictiens were. I was involved in discussing theo with Ellict
Kichordssn to help clarify his thoughts.
I cane to the office thct Saturday with no ides of whj.
wes -tckif-5 place. I vsr. not involved in the negotiations
chout the ennpronisc effer, and, in fact, I was in ny office
vcrlzir.q en sp;>sal xcccnrasndcticns. And, ct the mor.icr.t that I
left -the office, I was, in feet, -writing a letter -to a third
|jv.t!". rir.r.r. on tJm iiaportaunc of Hill of Uirjhtn D.iy. I wi:nt

598
J
down -the -hull tc vrtch Professor Cox's press conference, end
2 -tlien Tlr, Tlich.irdnon called n e in -to his office find for the firs
3 tine. Jit filled ns-in o n vhet ; s taking place. "At -tlict stage,
4 I -thin): n=tttrs were, fairly fluid.' V7e discussed & variety of
possibilities. Uillicra Ruckelshaus was in -the office, as were
6 sons, cf Mr. Kichardscn's aides.
7 As the afternoon wore"'oh, it "becar.s clear that Mr.
8 Richerdson would be asked to discharge llr. Cox. llr. Richardsor
9 said he could r.ot dc it because cf the special comaitroer.ts he
10 had rsade to M r . COK and to the Senate.
11 He asked ?'.r. Ruckelshaus if he could do it* - Mr.
12 T.uckslshaus said he could not. " . '
I think thct was the first moment when I realized i
14 niyht. be called -pon to do it. Ar.d I was' csked if I could.
15 After thinking for a moment', I decided that I was no*.
16 in -the special position, which I think* M r . Richardson found
17 hiraself and !lr.' Ruckelshaus found himself. And I -told Mr.
18 Hichnrdscn that T could; in fact, discharge Mr. Cox if that
19 w a s -the President's crder, but that 1 thought I should discharc
him and then rcsiqn wv own position. This was soracwhet seJfish
20
I sin Afraid, 'since I did not want to be perceived' as a nan who
21
did U J U President's biddinq to save his job. Both Mr. Uichard-
22
-non and Itr. nuchelr.hnur. urqorl 'nus, nt that point, tlir.t if I lf "J
23
d o it, -not "to Tsi'jn bacr.usr: tlic Dr;)J.rtneiit 1'.'!"v.rvei| cor.l-.inuj.t-
24
25 T.et w e nlr.o aay'-:h.tl."I did jiot t>lv.y <-!!: I'lr;!-11 ' ''
599
order out of any political or personal animous towards Hr. Cox.
Mr. -Cox has a reputation for great Integrity and greet ability,
.end from ny observation of him, I have r.o reason -to doubt those
judgnents that the world has made of him.
I did it .because it vas apparent at the tine I was
called -upon -to make "the decision -that the decision of the
President to discharge fir. Cox was final and .irrevocable.' it
was going to be dona. I also believe that the President has
the right to discharge any neirJber of the Executive Branch he
chooses to discharge. I further thought that if I did not do i
but resigned, or was discharged,' the pattern I set after Ellic*
Richirdscr. and Willian Ruckelshaus had refused would probably
lead to na$s departures in the Department of Justice. The '
Department would be left in a chaotic condition and badly
crippled.
I did not want to see the harm go any further in the
Pepcrtnent than the resignation of two extremely able men. ARC
I ara< in fact, now doing my best to see -that it dees not go any
further.
I then went to the White House where I signed the"
letter discharging Mr. Cox. My next act, realizing the positic
I was in, was to call Henry Potersen and ask him, with as much
persuasiveness as X could muster, to otay with us, because I
think V.cr.ry Petnrscn is Indispensable to the Department at
thin staqs. llin reputation for ability and integrity is

600
3- -precisely vh&t we heeded, and I personally needed hin for advx
' "2 and -counsel and for strength. '
3 - -Mow, -that wan -the sequence of events. ' let me say
4 -a rew words ebout ny Intentions for "the Department. 1 ara an
5 Acting Attornay General. I an not nominated and cor.firmed
6 Attcrr.ey General, and therefore, 2 view it as ray task simply
7 -to keen the Departncnt gcir.g en an even keel and -to make it
6 as effective &s possible for as long as we can ur.til a new
9 Attcrr.ey General is nominated end confirmed. 1 don't plan any
10 ir.ajcr structural changes. I don't plan any personnel changes.
11 I plan tc carry out the policies initiated by Elliot Richardsc:
12 and Killings Ruckelshcus, and I have'asked all the personnel """
13 in -the Department to stay and help keep the Department going 1:
1.4 this extraordinarily difficult tine.
15 About the prosecutions. The President gave me a
16 letter and also said orally that he expected vigorous prosecu-
17 tioss. 1 believe that and there will be vigorous prosecutions.
IB Vie will go for whatever evidence we need for complete investi-
19 gationS and successful prosecutions.,
20 1 have met with Henry Petersen and with tlie neinbers c
21 the former Special Prosecution Force who are now members of
22 the Criminal Division of the Department of Justice. Mr.
23 r&tcrncn and I told thorn that we wanted them to remain
24 and that we wanted them to continue working. In fact, we
2G tlian very urgently to continue workimj because their knowledge

601
^ i l es'J y
i-onn oJ ,
<joing -to press iiaxd. *Jo nan i n my position could conceivably
afford"'i*bV%o-pr*SB *ard-.* ^'intend Vo wrflk'out'03/ t h i s job
my reputation un%~pr&r?jdV 9ya>altih.fet ^.B-^the ây'^t dls "tjoing to
be'.
'*"' - ' v ~-iii- closing, 2 vent "to*say -this. I got ^to know . .
v:illi&n-Ruckelshsus feirly well, but-not as well as I did Cllic
Richsrdscn; and Z csrae t o admire ~Hr. Ttuckelshaus a -threat deal.
1 worked riore closely v i t h Mr. Richardson. And I must sey, in
a l l rty l i f e , I have never worked with a nan X liked better cr
whose1 talents I thought more highly of. Their l o ss to -the
Depaxtrcsr.i'is^ an Extraordinarily aevere blow. And I think the:
* i s n ' t e meriber xif t"he Oepartnent vho doesn't regret i t .
' "Howl ^think lir. Stewart has the f i r s t question.
' ' MR.STStWRT: Or. BorX, the former Attorney General
set great value cn -restoring public confidence in the Justic:
Departnent; and that being so, he said the Special Prosecutor
would be'absolutely"unfettered in going after the evidence.
~ Vow, you* have eaid that you will go wherever the
cesa leads, : b u t ^ i l l you t e l l us now that If I t ' s necesscry
to tcke'tlie'White! Arouse to-court-once again, once again to
get êrtain^-doc:ulrafeiaxy -evidence,-that : you are ready -to do
"that?'' . _ . . , . ' ,
. ATTOaNKY-fiKNfinALÔftK? "2 ion ready Co follow
602
l any^ rprocrchircj jjy^grpenmvt,pr -otherwise/ ihatîs(essential
2 to tgct-thc>yitlBXioj*.hei^ ,>lflvcsti5ations_ pjnd^-prpsccutipr.s ..
4
- QUESTION:. jlf you have to .sue hc President of
5 the United .States^ vill you take that step?
6 ACTING ATTORTTEY GENERAL BORK: If we have to use.
7 judicial processes, which I -have r.p xeeson Jbo believe v;c wii:
8 have to, but if I .have to, no procedure J.s -ruled out that _is
9 -ss'ectial to êt the evidence.
10 QUESTION: Do ycu have -a ccnaitnent Jrcra the Whits
11 House to that effect?
12 ACTING ATTORNEY GENERAL 30RK.t .JThe enly -- I h?.va
13 two 3:inds of things. One is -the President's statement to
14 He said Saturday night that he thought.! was a man vho belie\
15 in -the law and ho was expecting me to carry 4.t out vigorously
16 Since then, in contacts yith the Khite House, I
17 have not had tine to regularize any procedures, but it is my
18 clear understanding, my clear impression when we were talking
19 that I will not be hampered in this -investigation.
20 QUESTION: Mr. Dork, you will not be what?
21 ACTING ATTORNEY GENERAL DORK: ,Be.hampered.
22 QUESTION: Specifically, the .President faid in .
23 dischcrqing Archibald Cox, xathcr he .said on.Friday niqht
24 Archibald Cox vas ordered not -to ro after White House d
25 involving rrocJdcntioljConvcroations.
603
iiou, cpecificnJly, will you 90 nftur tJhitc llousg
ta involving Presidential conversations?
TiCTlWC. ATTOiy.TY GENERAL JlORK: If the lew entitles
us -to any item of evidence, I will 90 eftcr It.
QUESriOll: Hell, vould you he a little more specific
ebou'e -that? You mean if
ACTIHG ATTOIBJEY GENERAL DORK: Hell, the Ccurt Of
Appeals opir-icn, v;hich I have rttd once end haven't er.d not
thinking I would heva to study it with the closeness I will .
now have to study it the Court of Appeals opinion is e
very particular opirJ.cn, end it says when these circumstances
are present. It doesn't scy, give a blanket right to everythir
co n^ttr vht without a shewing of relevcncfe, without a show-
ing of need and o forth.
There is no evidence th.it v;e nscd find we ere legally
entitled -to that 1 will not seek.
QUESTION1: Would you have rejected the cgreenent ths.t
the President was urging on Archibald Cox?
JVCTIHG ATTORNEY GnNElWI. DORK: llad I been'
GUECTION: Archibald Cos.
ACTING ATTORNEY CniERAL UORK: I wight Jiot have
because thnt enrccnent cnpliud only to the Grand Jury procemiir
And if it wnrc lcternini-.l by .Tmlnc r.irica tJiat a verified,
nu'Jv^5itic.->tcl, vr.rbatin trcnr.cript wns Acioqunte tor Grand .lury
jjui-M'.'r.ci, X l.hi'n): I umtlri have ngrced to it bucaur.o thnt'n ;i)l

604
i I r.ce<]<:il i t f o r .
2 The prel>l: uould come r.t a later stage, as Mr. Cox
5 pointed cut. vhat.hind of a transcript may or may -not be
4 *uicit>nt fcr full -trial before a petit jury, but that is a
5 little bit Cui'.sr.!icnow 1 ohouitln't use academic in a
C perjerativs sense.
7 QUESTION: Mr. Cork
8 ACTING ATTORNEY GUJJEilAL DOHK: It's a little bit
9 ccF.detuc nc because the transcripts are not being made, as I
10 understand it.
11 OUESTIOX: Mr. Bork, there is
12 O'JnSTIOri: Ilr. Bork

!
13
ACTING ;.r?05c;::v cn-inRTiL BO?I(: wait, v?ait. KO>., how
1C
do v;s y e s .
15
QUESTION: Mr. Cork, the condition of the President'i
16
concession t o have- Senator Ster.r.is f i l t e r these tcpes to
17
t'oa Grand Jury wr.s tliat Mr. Cox not ask for any ether stntener.t
10
or document t h a t he v*as pressing for and had been pressing for
19
for four months.
20
Mould you taha that kind of a deal?
21
ACTING ATTOISJ.'IY GHNIIIVVL DOR):: Ko, I think I wes
2?
rt-.fcrrincj n-.-mly i.o the idea of usinq zn authenticated
?;s
tr~niics.'Jj'''-. I t would ilisprncl, cf course, upen whr.t I i-
PA
tin. y.ntn\ tor tho:;i: iocumcntn w.-.n.
: W^ll, vluvt tibout thr. v;hole ;ltal?
605
10
Would yen take that kind of a deal or not?
ACTiim Arror:!i;Y CEIIERAL UORK: The total deal?
QUESTION: Yes, the. total deal presented to Hr. Cox.
Would you iiakc. it or leave it?
ACTIKG ATTOISIEY GENERAL CORK: No, I could only
accept n arrangement that gives the Department o Justice all
the evidence the people in charge of the prosecution think is
necessary for the investigation 2nd for indictment if called
for, er.d for successful prosecution, if that is called for.
QUESTION1: Well, veuld you have taken it or left it?
ACTI1IG ATTORNEY GENERAL BORK: I have you knew,
I don't 3:r.ov what these dccuner.ts are. I didn't know anything
about that case before Saturday, and I must say I know only a
little r.drs now in its general outlines. I don't know what
those documents are. I don't know whet the need asserted for
then was. I would not accent I can only answer you in a .
general term. If I had thought -those documents were proper
for the Grand Jury investigation-, I would not have accepted any
deal that precluded ne "from getting them.
QUESTION: Could we ask Mr.. Petersen the same general
question, please?
He has scnowhot norn.familiarity with the documents.
(General laughter.)
ASSISTANT ATTOR:JI:Y r.amiWT, rrrnRnrcj: I don't know
how you know thnfc. I hnvc boon" out of the case since-. May.
606
II
: Hut it was 90 percent complete when you
luft, sir.
(General-laughter.)
QUESTION: But it's 00 now.
ASSISTANT ATTORNEY GEWEIIAL PETERSEN: Once agcin yo
arc overwhelmed with your own learning.
If you knew what was there when we left, we had
Watergate prosecution, political corruption cases. Watergate
prosecution, per se, the break-in, the coverun was 90 percent
10 complete. What is R O W kr.ovn as the Watergate cenplex as a
11 result cf Mr. Cox's effort, and it is a nulti-pronged investi-
12 gation. That investigation is net 90 percent complete. S/_ ___
13 ths vehiclp has changed since then.
14 So I am not prepared to answer in detail with respec
13 to the evidence. When I left the case I frankly lost a lot
16 of interest in it. I am back in it.
17 X can tell you as I told the Prosecution Staff, we
10 are not prepared to give advisory opinions either to you or
19 to then, to ths Ancrican public. We are not prepared to lay
20 down any threats, express or implied to anybody, witnesses.
21 White House, other governmental agencies. X can only, reiterat
22 what lir. Cox has sold. V!a expect a thorough, professional job
23 We c::pcct to press for evidence where it is needed, where i**
24 in ncccr.uary, and where it will be helpful in the pronecutiWT
25 of the ci:;c, whore it in callfl for in tr.rm:i of profusr.ional

607
12
dirjc.\i.T<u: cf our respon
.l.'ow, 1 dor.'t think it serves any purpose to go bacJ:
to v.'lv.l v;c vould have dono hr>d \;u been Mr. Cox on Saturday.
Tlr. Co: in ,a very cble perron and I respect him. But I uculd
like to thin): thf.t given the. events of the pr.st fev; days that
v/e, you, V2, the White !!ouse, the American people/ the Specia
Trosccu-i-icn Fcrca ar.d the Criminal Division can start anew.
The crises that we face tcnorrov, that are necessary, will be
real enough without rehashing those of yesterday.
QOTSTIo::: Ilr. Petersen?
ASSISTANT ATTOICffiY GiiflEIViL PETERSn:: Yes, ma'an.
QUESTION: U i l l you ar.d/cr the Acting Attorney
General p s m i t -Lhe v;hitc House access t o your f i l s s end your
evidence that you inherited from Mr. Cox?
ASSISTANT ATTOS-'v'EY GENERAL PETEHSEN: Well, I never
have had t o permit the lfhite House access t o anything I havs
had. Th&t i s & vtry strange question, i f I may say so. The
White House response,
QUESTION: (Inaudible.]
ASSISTANT ATTOISIEY GENERAL PETERSCTJ: Well, I do.
I mean, ycu asked i t and I cm answering. I think i t i s a str.
question. That in not part of the White House's renpcnsibili
QU):r.T10N: Hut i n -the pa.-.t, s i r , thoy have auked
t o ncii (7nnu'lii<lfs.i.
cn.'Y r,i:;n:jiM. io:n:jt:;ra!: Thr.t'j: not

608
13 13
correct. . . .
I
vrm; r dlf you -want to -testify, .you ars welcome to
3 cons .up here. That is not ^correct.
4 -QUESTION: What did you tell the President on Apri
5 .15tli, Mr. Tctei'sen?
6 " ' X3OE5TI0M: John Xhrlichnan'.
7 - ASSISTANT ATTORNEY GENERAL TETERSEK: Pardon?
8 QUESTION: What did you tell the President on
9 7ipxil 15th of -this year? ;
10 ASSISTANT ATTORNEY GEKERAL PETERSnJ: Ultimate fact
11 and I gave hin advice with respect to pardon?
12 QUESTION: You're not giving hint access to the
13 evidence and the facts?
.14 ASSISa.iKT ATT0RK2Y GEIIERAL PETERSEN: Well, there's
15 a difference. You know, I didn't intend to cone up here and
16 conduct a class in law, but there is a difference between
17 evidenciary fact And ultiia&ts fact. I advised the President
18 with respect to ultimate fact. .1 advised him with respect to
19 proposed courses of action. That is quite a bit diffcr&nt the
20 giving hin evidenciary detail. Doth the President and I
21 agree that he should .siot have Grand Jury information, lie did
22 r.ot. jet .it.
26 . cOUUCTIOH: Ilr. Pctcrscn, in yoint oC fact, did & *
r.ot testify in the ITT invostiiatlon on April lltli, 1972, and
ttjr.timony Sn now licld .by the r.pccial Prosecution?
609
1-5
jvnniiiTAtri' MTOi?i:ny OUJKKAI. TTTJ;RSJ:H: No, i did nci
tcu-tify ir. the ITT investigation. I testified in the Klcir.d:
hearings ,-air.d I did not êstifj' *;ith respect to the ITT matt*
I testified -with renpoct to an action which I h.id rccorntenrict
the Attorney O.uncral-of the United states take with respect t
one of his ermloyoes, namely the United States Attorney for
the Southern District of California. That was a peripheral
aspect of it. " - -
I recuscd myself from ,thct investigation until that
aspect cf it \;as completed. That Aspect of it was completed
when it was examined for potential perjury.
-Nov.', the cthsr especte of it that nay be open have
nothing to do with the testimony with rsspsct to United -
States J\ttoit:ey Karry Stev;ert. SO I feel under no obligation
to recuse nyself.
QUESTION: lir. Petersen, riliot-Richardson and
V.'illicjn Ruckelshaus have said they favor appointment of a
Special Prccocutcr, saying that the appearance, the appearenct
of justice requires it.
Uhat is your thinhir.q on this?
ASSISTANT 7kVTOWJJvY rj:NERAL TETBRGEN: Well, once
agrin I h:ivc. t o qualify my aiwuex. I thin): worst of you r.re
f n n i l i r j : ' v i t h ny tcstinony before the Congrcns in which I
indicated t h a t I li:*d oJijttctcil t o and rucor-rtettriud crain:;t h.iri::
or r. SprrJ^l Vrr:fc:nlrr 1u'c;:u;:/ 1 tlnu*<|li{. th.:t i t was a

610
n t h e - capability o f Js D e p a r t m e n t o f J u s t i c e t o
2 tpcrfora its-oWLinutios-'J. . - :-.
5 . I-crjac to-rtfcognir.c that, .however-1 .asight f e e l , that
4 t h t t course, -el ecl-.ion vaj inevitable.- One:* again, I w a s n o t
5 j -right. T h e P r r n i d e n t * n d o t h e r s , l!r. ftichcrdscn, M r . Kleindicnt
C d i d rcccracsiS -esd S p e c i a l P r o s e c u t o r w a s appointed.
7 I X w o u l d hope that t h e investigation can proceed
8 vi'ch coafidence in t h e cxinin&l justice sycten, v i t h confidence
'9 i n M r . Bork end BUS, with,confidence i n t h e Special Prosecution
10 s t a f f . -We h a v e a-high obligation to ourselves as professionals
11 end v e htva n -even higher obligation t o those professionals
12 vcr!-: f o r v= JirJl v.*c intend to dischzrr.e that responsibility
vliatever t h e coricequcnccs? . . . .
' ACTT.UG ATT0K1EY GHICERAL BOIU;: May I just edd e
15 v o r d tc this? . - .
2.6 .X recognize, cs doss ilr. Peterson, tliat the American
17 public nust perceive thr.t the integrity of the Depcrtinsr.t of
18 Jusfcica end of the criminal process is unimpaired, as veil -s
19 our assuring you thct tI^^t is true, end we have under consider-
20 ctioa a vr.ricty of procedurer. or machaninms by which that
perceptien eusy be encouraged or may be made the trust may
j>; be given to us.
Mr. i:orh, -what are thor.c

Ta #irroitijj:y rj'jir.RAi. ioia:: 1 .ria not ioim to
.v.irii:ty of j*roc-.lures we huw. w ,r coi>irt5i*ation
611
1C
ri<]hU JIQV, but -I r e a l i z e i h n t our assurance that vc i r e going t

pr<mn vigorously nay r.ot be ênough. I don't knew how anybody
couJ a incgins titct- e n n n standing where I xxa, new would dare
do anything cine but press vigorously, i f you have any idea,
cny r.ynpr.thtic innqinction.
But, in addition to that, we have under considered or.
prcc^Jvrcs cr ccchsnisn.*: t o nskc tJjet fact spp&rent to the
public.
QUSSTXOK: V7ell, llr. Dork, would these nechenisns
f o i l short of appointment c a Special Prosecutor as we kr.ov
e Special Prosecutor?
ACTHKG AT70!C:ny Cn^ÂL EOrjt: They nay or n-y net.
I ' v e get a v t r i t t y cf c l t e m c t i v c s in siind.
QUEST*OIJ: ?n a prosecutor one of the considerations
i n nir.d? .
ACTING ATTORNEY GmJ33RAL DDPJC: I t . h a s , l e t us say,
crcrtr.ee" ny aind.
QUnSTIo:?: Will the Special Prosecution staff stay
totjtithcr as an entity? .
Will the heed be un'dcr .'Jr. Peterson, and who w i l l
tlict head bu?
ACTIlin ATTOreiHy nn:RAI. IJOmC: V.'ell, right now and
o Tar an I ma concerned, that hn.id i:t Hr. Huth. Tliey \%'ill
:;tu-y ôiiAhlicr -! rn entity bccr.u;:^ I thin); their
Oitjv-mlM MI:J: <.h."t. I.V11, we havii r.:;>.iul tlmn to afcn
612
37
rrc"rjrac|Vd th-Ma to ut.'.y t-og'jthur and not t o leave. I t r u s t tl

fchcywor.'tr )*ut T tlcm't know.
' Ye:O?
pUr.r.YIO'.J: Tir. Dork, t h e T.'nite House has publicly

5 vci'.-=ft i t s tfoubtr. about, t h c p o l i t i c c l alignncnt of Ilr. Cox's
f.
7 Are "you gclrm to retain that entire, staff as i t now
8 ir.?
9 ftCTIKG ATTOrJTEY GEHEnAt CORK: I htve no idea
10 Pi_-~-:iclly v;hct the p o l i t i c s of the marchers x>f that s t a f f ' a r e ,
11 iir.c 1 den't reall y cere whet -chc p o l i t i c s of that staff are
12 so r.cnc i" they behave thfcnselvss as conpater.t professionals

1!
\;hc zc ucir.y a job the vray a ccrâtcnt profassion?.l do^s i t ,
14 jr.cl I rja cure they v i l l .
15 I happen t o have lived most of ny l i f e in a milieu
16 in i-hich nobody erour.d ne agreed v i t h :re "politically, imd that
17 Cccisn't bother ne.
10 QUrSTIOH: Mr. TlorJ:, since" the President fired Mr.
39 Co:: fcr tryi.ng. t o enforce an ordct t h a f t h e ^ r e c i d e n t hos' no-..'
20 ace.-_pted, why can't lie rehiru Mr. Co>r?
21 ACTJHfi ATTOlS^nY Cr^DHAL BORIt: I 'don't reqard that
P.?. a.-: - v.irv vi jblv. "Kngficnticn fron anybody'o point of v i e v .

OU>:r.TTO:j: Why r.iit?
ACTJJir. Arro'.eiKV-cninTsir. Vnja:: '-uUll; a l t e r an; opinci
' i i \ . ilv!U,'T !bni'i\: ahti't' i t '..'Mildhf.-:):'diir.q +.0 do: You cati*
613
7TU2 tirj'j J^cJnwnrdn l i k e * notion picture.

<?UiiD'XIOM: Well, tha President changod h i s mind on
e r x thing. ' -*.*hy ccii't-hc Chenge i t -en Cox?
"^VCl'IKR JVTTOJwXY RncnHAL BORK: Well/ you're free t o
rsh iiin i f you vould. I don't knew whether he would or not.
QUTSTIO:?: IZz. Bork?
- -JiCtixG JVTTOK:EY ca^:riuu. BORK: Yes.
- . QUESTION: llr. Cork, yoa end Ux. Peterson both ssen

be sryLT.tj t h ct you do not f e e l bound by the President's ordsr
to 21T.- Ccx v.ot t o continue further l e g a l action t o cbt2in
-othf.r IChite House docun&nts.
Have you been given havs yea been told anything
by anyone s t th 1-Thits House that leads you t o believe ycu 2re
l i o t booed by -thet?
ACTIKG ATTORNEY GnJTH7L 30niC: To t e l l you ths
truth, i t d i d n ' t occur t o me that I wes bound by i t because
t h e o r d s r was asot directed t o e . I t was directed t o ISr. Cox,
cud &11 the indicetior.s I have so fsx, and the President's
expression t o me wan that he vented a f u l l and vigorous
prosecution. . "That cecns -to me t o nccn tlint I sxa fruo t o give
. o f u l l and vigorous pronccution.
~: . lUJirJTiaJ: 1/ull, he a.iid that t o llr. Cox, who ::&5<1

ho, voultl huvti-a |>r/ctly Xxoe hnnd during tl>n t:stiinonv en ^!
JM '.1. Jhiffi Jus .coia'.'.'i ig.-,ii:.
614
1 How, ir. i t chriuicti flow? Ate things ehannccl that
2 much now?
3 ACTTKC ATTOPJJDY CU1CIWL UORKs Well, 3 ' n siot going
4 ; to 1 tMrfc l citato er discuss tlic President's relationship wit;

5 I !lr. Cox. As 2 understand i t , Henry Petersen end X ere free tc
6 press forward vigorously, end thnt i s the way we intend t o
7 proceed.
e QUESTION: Mr. Bork, should the President choose yci
9 t o b e Attorney Gencrd, would you eccept the eppointnent?
10 ACTIWG A7T0IC:I:Y K::SRAL SOWS: I doubt i t . 1 can't
11 even see who i s eskir.g the question. X doubt i t very rwch.
12 The job has l o s t a grert des.3. of !. ettrr.ctiveness to ne

tha l r s t 1ft hcurs.
14 (General laughter.)
15 QUESTXOM: !!r. Dork, vhy did you sey that you htd
:
16 pltnr.ed t o resign after firin g Ccx?
17 ACTIWG ATTORNCY CSIICIÔ. IiOI\K: Well, frankly, I guer
18 t h a t X w&2 feeling that 1 would be perceived e s a man- who wou:
19 do acn.sthir.g l i k e that juot t o ecve h i s jcb, nd I tay
20 f i r s t thought, I'm afr&Jd, was c l i t t l e s e l f i s h in t h c t sense
21 bcccuac X d i d n ' t vant t o bo perceived that wty.
OlirSTION: Xt v/csn't bsccd then on A disagreement

v i M> Pn-oislcnt's deniru t o g t t r i d of llr. Cox?
ACTH:<*. ikTTOJUJv.v nnuniAL Ktom;: % f.r.f.laincil to yo\i IT
only no. Xt ur.n hur.v'A upon'A rtenirc not t o bo n-.-cii an r.ix
615
20 -20
JL r g c n i r a t i c n iacn <vho f e l l o e s ôrders o w.-.ttcr vhst. tAftcr I

2 t c l k s d -to B i l l JtuchclshcUs ar.d E l l i o t nichtrdson, X )>cur;ht
-3 Ojettcr of i t .
4. ^X)UCSVI0X: Mr. Dor):, -you said the idea of appoir.tir.r;
5 A p c c i - l rrOSecutor hed crossed your xsind.
6 Arc you reviewing nr.y nones right now?
7 .-ACTING ATTOKT.-zy CrrJSRAL BOnJC: 2 don't vant to discur
8 that. -I en xeviei/ing l o t s of idsas,-cnd i f I begin -to sp
9 about tlib ideas I rja reviewing, i t w i l l give then certainty j
10 or inportar.ee they den't yet deserve.
11 -QUESTION': (.'ell, l e t ne as!: you about-your r o l e as
12 S e l i c i t c r Cenercl?
13 Suppose you dc cocidc there i s sor.e evidence you
14 s e e d , end the ift'.te House says you don't, end you 90 t o court,
15 vho do you argue for as S o l i c i t o r General? Uho does your
16 o f f i c e argue for?
17 .ACTING ATTOIUJEY GEJEPJM, BOItX: Well, I assures i f
10 the'e ever too): plr.ee, that Charles Alan Wright end I would
19 be dzbeting.
20 "- QUESTION: Mr. Oorh, there are noves i n both Houses
21 of Congress -to recreate the Office of the Spccirl Prosecutor.
22 H i l l tlic Justice Dapartasnt oppose those jacves?
23 -IVCTIKO IVTrO.TinY ruz^PJU. DORK: In vhet rona do they
24 viah to rtcroate i t ?
9*Jiu r>cu.ito plana -to intreduco a an-.-su'<>

616
which vould ruate Specie! Prosecutor <*jnjointea by .and

uresncnuiblo 4bo Judge Sirica . _ - .'
s ACTING JiTTOI-TSY CnTSCIUVZ. OOUKt . X e t e SCy till?, end
.4 jbov Sfeol Xifce *o speck as e professor -of law, which 2 s t i l l
5 W f t s c f the Jêst orC frca Slew 42aven
6 ^General laughter.)
7 . - . ACTZIIG ATTOîEY CET.TRAL SOIUts xftther than as the
e Acting Attorney Ccnsr&l. Xt *ems t o m th&t eppointinc e
9 Speciel rxoeecuter xesnonsible e i t h e r t o <court* or t o -the
10 l e g i s l e t i v s breach cses severe coastituticsel problems. I
11 .AhisX prosecution Is en executive branch enaction by the
12 constitutioa. X think' furtheracre that just in prtctical
13 tfiT-fj i t would be terribly onfortuncts i f v t ever exrivad at
14 mltuetion i n t h i s country where every breach of the ^cvarnns
15 had i t s occ Oeptrtcsnt of Justice enfl we e l l litigated vith
16 *acb other.
17 QUESTION: Veil* s i r , e s e cattar, aren't there c-e
.18 t h i c a i prchlcns, thet i s legal- ethics, i n you ae en enplcyce
19 of the President, litigating egelnst the President in court?
20 CfiB you oerve can you l i t i g a t e cgainst your hr.
21 -caploycx witl&is the-ftenons of legal ethics?
22 . : ACTIUC nTTOJCa;! CaiEWO. COnKt Yes, Within the e&r.cr.:
23 t 2.^gl"t>iics. % -thiafc'tho problcn X trust I t w i l l net
24 cc? t o the iucstion ef hT/ing t o l i t i g a t e . X have no ir.cUc.it
.15 t h a t i t - w i l l -otwo t o -that. Hie nrohlina for me la really no
617
umn 22
Q
d i f f e r e n t . I f i t should cone t o t h a t , .-than I t was -for Mr. Cox
s JL
f
I 2 because he, * o o , -was în xsnployce nu>>jcct t o th e d i r e c t i o n of tl
J 3 P r e s i d e n t , a s fir. Cox f r e e l y admitted.
Jt2USTX0!f: J)ut Attorney General Dor):, he was an

4
5 o a p l o y e c with particular s p e c i d guarantees, and -
6 JVCTINT. ATTORIXY CTJCJWL 3OIUC: e l l , 1 understsr.d
7 n y s e l f t o have e rîarer.tao that- X en Xre* -to prosecute a
8 vigorous i n v e s t i g a t i o n . .
iVoices.)
9
ACTING ATTOJCJEY GKIERAL DOAK: I beg your pardcr.?
10
ODESTION': This is net a gusrentes thct has been
11
i shared v.-ith the Concresn or voiced bv the President,, end you
12
* I
ers the nan who fired General Cox.
"4 13
ACTING ATTORNEY CSKESAL BOR.K: - Now, wait a ninute.
14
IJMch cjuarantee has not been voiced by the President?
15
QUESTION: The gvarentee to you;
16
ACTING ATTORNEY CSJERAL OOrJC: Well, it was in the
17
letter that appeared in the papers, to me. ils.said he expected
18
I 19
the Depzrtnent to continue vigorous investigation and prose-
i
t 20
cution. I regard that as a .
QUESTION: Sut iio did not scy tlict you were. Tree to
21
i conduct the prosecution without any oversight froa him.
i 22
ACTING ATTO!r:CY CJS.^nAI. VOtiKt X ur<1crstocd my
5 23
4Urnctivi to be -to pursue investigations r.r.d prosecutionn tlm
\/?.y I bhciujht tluy oti^ht toJra 'done, nnd the wr.y Henry
25
618
23
. 3> P e t e r s o n * h o u g h t t h e y u g h t -to b e ilonc, za-A -the w a y o t h e r

2 f>ccple involved -think they xmght "to be Hone. "That Is the way
3 I jir.derstar.tl that.-
* . . CwQUCSTXON: tlr. -Sork, cen you tell us if At any -tine
5 since you were nenad Acting Attorney General, between that tin:
6 .and the tine that the President changed his raind end agreed tc
7 follcu the appellate -court .ruling on the tapes, you indicated
8 -to the White House that yourself or anyone on your staff here
9 w o u l d b e reluctant t o resume control o f t h e investigation cr.l>
10 ths tapes were .released?
11 ACTING ATTOrUJEY GEKERAL BORK: There are a couple of
12 things in that I vant to get. In the first place, I was not
13 narsed Acting Attorney General. Let's get that there scens
14 -to be sens xoiscencsption that because X discharged I Jr. Co::
15 I was nened Acting Attorney General, nothing could be further
16 fron the truth. 2 became Acting Attorney "General by opereticr.
17 of the succession regulation.
18 -And that is when I recieved the directive, because
19 Z cans into that snot. Kow, Z vas told shortly before the
20 President's Counsel vent into court that-they indeed intended
21 t o Annsur.ce full compliance, *o that the question of the role
22 the Department would plr.y never had to be announced. He had
23 .in ccurt, if 1 recall correctly, Henry, we had both Henry
21 -Ruth cn3 lhil l^cov.-rn, ZMA t vexc tjolnq to try to *co, befor'
SO WM 1 earned that full conplirjicu voulrt l>c snnouncurl v;hat
619
o rl position vas joing to betaken so 'that vc could frame a

i 2 position.
I 3
4
-It is, obviously, en extraordinarily conpliccted
-e&ttcr. Kc Jicd very little tins -to -try to face it, and both
5 Mr. Tetcrscn er.d I heva - Mr. Petersen has been out of touch
6 with it; I -had never been in touch with it, so -that we were
7 frcning positions end thinking, about -the problem as rapidly es
6 we ecuId. Out it didn't come to that, so that's A S much cs
9 I car. say about it.
10 QUESTION: Mr. Bork?
11 ACTING ATTORNEY GEKS?AL BORK: Yes.

i
eV 12 QUESTION: Yesterday General Haig said.at the l.'hitc
j 13 1
Kcuse that while they had doubts en the '.Thite House st&S
14 cbout the partisanship of the Special Prosecutor's steff, they
15 had nc such doubts ebout <!r. Cox. He went on to say that
16 there was & feeling among the t.'hite House staff at a high levc
17 thct the Cox investigation had been "roaming off the reserva-
18 tion."
i 19 Mow, you have told us that you have full powers to
20 pursue the prosecution,'but do you heve any kind of definition
] 21
22
whA-t -the reservation is?
ACTIUG ATTOICCCY CENCHMi .ooiutt Per the moment
23 QUnSTION: The ITT c?.r.c, for example, the Kcbuso

I 24 $100,()0!l r.JJ'l* varirJ inrinrnen .iini no on, all the dirt)'
s
20 trie.":::, arc Oinui- on yous rnncrvr.tJ.on an you construe it?
620
25
~*" 'iCTXNG IVTTOniJEY TXHCRM. UOIU;: ~ V e l l , us X understand

-^ i t , n d X 4tndcrstand it ^perhaps n o t well -enough t o speak
' .3 -authoritatively, i f i t h a s -to d o with llatsrgate -related matters
"* x r Presidential anpaigns and s o forth, -the -things that led
5 -to t h e netting u p o f -the concerns and the related concerns
* that -led t o t h e setting u p o f the Special Prosecutor's force
7 ' i n -the first place, that i s still within the anbit of t h e ir.va:
tigatiens a n d possible prosecutions.
9 Mow, it is a little bit of a n artificial question, I
10 suppose, because t h e Department o f Justice has authority fcr
11 t h e enforcement of all t h e criminal laws, and whether scne
12 ether kind o f thing that one night imagine cane u p or not, X
13 wouldn't think w e would have t c g o t into a debate whether
14 thaii belonged under this prosecutor o r that prosecutor. T h e
15 Department of Justice is going t o enforce all t h s criminal
16 laws.
17 QUESTION: M r . Berk, w e knew what i t is that you
18 h o p e to do', w e know what it i s that you want t o d o . Y o u have
3.9 expressed that here. M o w tell m e what your pledge i s should
20 the White House .attermt to prevent -you from doing all this
21 'you want to.
ZZ JICTXMG ATTORNEY GISIERM, BORK: X ccn only say that
23 - X =m s o t tjcing t o walk out of thin j o b , ^>ut of -this town r.s
24 t*>o inn tho in r.ny way conjV'!'i8'Qrt ir.v.stinations or pror.ccu-
2R tiotw.
621
2C
7?t)UliSTI0:J: ,3Iow a r e y o u g o i n g t o o a k e rood o n t h a t
-vow?
3VCTIKG ATTORNEY GEKERAL 20RK: -You can- u s e y o u r
'4 incc,ir.aticn, I think. .
5 ' QUESTION: Mr. Dor):, how nuch tine do you think you
6 have cs Acting Attorney General?
7 JlCTIl.T, ATTORNEY G2JEIUU. J30RX: Pardon nt?
.8 - ' -CJOESTIp:i: I!ow such tine do you think you have befcr
9 you will i e replaced with s full tino Attorney General?
10 ACTING ATTOnXEY GEMrAL BOnK: It hadn't occurred
11 to m .
12 O0ES7X0N: Are you bound by the 30 day rule?
13 JiCTIHG ATTOrcrcY CI.*KAL DORK: The Office of Legal
14 -Counsel tolls si that the Oepartnent of Justice is not when
15 the successor cones in frca inside the Oepartnent.
16 .QUESTION: Mr. Bork, why did you sty evhile ago that
17 you didn't anticipate litigation in this matter of
18 3KCTIUG ATTOICCY GQISPJU. CORK: Hell, because I
19 anticipate cooperation.
20 OUEST20:): Mr. Dork, did you act under the Justice
21 regulations in setting up tho Special Prosecutor's
22 Office when-you fired llr. Cox,.and that i s , that he could
23 -only bo 'fired for -extraordinary improprieties?
24 r. JVTTORTJr.Y I10HK: That wnr. tho Attorney
25 Kvrd'n -xcjuintion, which i s
86-974 0 - 8 9 - 2 2
622
.^QUESTION: J>id you repeal it before .you Tired him,

JOT Xi.ro. Itin underneath -that xcgulation?. *
3 ATTORNEY nEt.TRAL CORK: Tfou Jcr.ow, there vers
4 a list of things cited -there, but X think that is a legalist!
5 -which even X vould sot b * guilty.
6 -OOESTIONj What do you n u n a legalists?
7 ACTING ATTORNEY C E : E R A L 20RK: Because I think if ar.
8 Attorney General, A mar. is Acting Attorney General, takes an
9 action, whether or -not you think that another regulation is
10 still binding, which Is also issued by the Attorney General,
11 the action obviously emends the Attorney Gen*ral's regulation.
12 QUESTIC!!: Ocn't ycu htvs to cct under the regulatic:
13 vhile it is still in effect?
14 Can yen break that law, vhich it is, the xegulatior.
IS ACTING ATTOIC1EY GCUZRAL DORK: It is an Attorney
16 General's regulation. How, I
17 OOESTIOH: You disregard it, is -that right?
18 ACTING ATT0K7EY GEHERAX. BORK: .Mo, SO.
19 OOESTION: What is your position?
20 ACTING ATTORNEY CC;r.RAL OOIUC: My position is that I
SI had tho lawful right to discharge tlr. Cox pursuant to a
22 Presidential directive.
23 QUESTION: Without regard to extraordinary inpropric.:
24 You didn't ii>d jmy extraordinary Jlnproprietics, in
25 thn*.: correct.? ... . :

623
I ÂCTING ATTOnilElf GniERAI. BOUK: ^ J had really very
2 littlefcno*./ledgeof Jtr. Cox's activities, 31r. nichardscn tall
3 ne he was guilty of no extraordinary improprieties. 3 believe
4 JJr. Richardson. . . -
5 OUESTIO:?: Mr. Dork, in your opening 'Statement ycu
6 spoke of vesting to .keep people on bocrd, 310 personnel changes
? Has n Assistant Attorney Cer.eral or ether rtr.V.ir.g
8 nsnbsrs cf the Departnent said to you they -would -like to
9 resign or ere considering resigning?
10 ACTIKG ATTORNEY GSTJERAt BORX: e. " 1 think there
11 vfere sone people who Initially at leest .end I hope it \:zs
cr.ly initially were a little uncertain because the events

12'
were sc rapid and so startling. I have urged than all as e
IS
natter of cbligaii.cn to the Department, not to ns certainly,
14
I'm very new here, as n natter of obligation to the Oepartnsn-
15
and the continued effectiveness of this Oepertnent, which
16
is vary innortcnt, to plccse, if they could, stay i.n place end
17
keep this place running.
IS
' . QUESTION: Mr. .Cork, do you have sono sort of azzznc-.
19
nenx: vith tJie tmits Jioucc to obtain this evidence that is
20
*ro);cu'! of without litigation, vithout even filing c law suit
21
or cufcing for a subpoena?
22
23 ACTINC ATTOirJEY RS.XKAX. IIORK: I JiSVo proposed that
us h.-.vc.rgulAriucd procedures, and that hes been agreed to
ill 1 rinciplc, aa J n::i1rxu irjid it.

624
29
OUESTXOH: 4Mould>you e x p l a i n those?

. _-.-.' ACTING ATTOIUIEY CnJErVtf.T50IUC: o , i > e M U S 2 heve
.3 -dbcen-running r e a p l a c e b o p i e c e end 1 .hcven't drafted -any
4 -rcgulcsised procedures, but X w i l l i f we can ~ I f things w i l l
5 -aln dovn. . . - .
6 - -flight now l-iseen t o be Attorney General, Deputy
7 -Attorney General -nd S o l i c i t o r Ceneral, -end i t i s not working
8 -too well
9 (General laughter.) _'"
10 -.ACTING ATTOISiry GB^RAL SOKRs But a s SOOn e s Z
11 h&ve a chacca "to .get down, wa w i l l -try t o sake son* proposals
12 about xegulerizsd procedures.
13 -OOESTIOIJ: These are procedures for tursing cvsr
14 of t h e Cocunents, for
15 ACTING ATTOPJ.'EY GEHEWVL BORK: VJ.ll, for Obtaining
16 viCrr.ee thet:M needed. That's r i g h t .
17 tlUESTIoy: Troa -the llhite House, right?
18 ACTING ATTORNEY GESEIUU. BORK: I f ws seed evidence
19 ron -the t-!hite Uouse, than I would l i k e t o heve some agreed
20 upon, procedures whereby wo can g e t -than.
21 ~UCSTIO:<: Yir. "Borh, aside froa the l a t t e r tha t you
22 hvo from -tito rrcr.idcnt )>out vigorous prosecution, did you s t
-23 xny -feinc s i t down end -talk -with t h e sun end d i s c u s s -the pc:;ni-
24 b i l i t Y tliat-you igl<t-linve t o ho vigorous onoutjh t o sue hi:.>?
2 Si un ATTon::j:Y <;K:I:IIAI. now.: *k>, I tnlkc<i t o Iiim
625
30
rjht, md Jtis rtatcmcnt t o nc on t h i s precise subject
, ;*rderStand:fcl4at~you r c <devtert tto *he t>rincic
SDf JLew, nd 3 -stant;':vou t o carry utfthesc iavastigstions er.d
prosecutions ZuHy.r^Vnd HmslA, t h a t 2 w i l l do. And that ves
d l v e szJid. -It was o t 31 t i n e -to l>gin îcgotictir.g procadur jr
6 . -. - <QUEStlOSi *Iishtn't you have xciseQ the vsrnir.g thct
"7 -you night be put i n e position -where you would have t o
8 -ACTING JVTTO1UJEY CEKECAI. EOlUt: Hell, I think that nus
9 Jse Apparent t o eny reasonable iaaa i n -that situation, that or.es '
10 2 gc ixto t h i s position I iiava t o have the evidence and the
11 freedom xecessary t o carry out the job successfully. I an sur:
j
rm
O
12 nobedy could have xiisur.derstood that. I an sure the President!
c 13 didn't nisunderst&nd that.

*
14 ' tJDESTIo:?: Well, there v i l l be in the neex future
15 in canera hearings before Judge Sirica, possibly later this
16 -week er next vet):, during which the VSiite House v i l l claim
17 that t J.cast one of the nine subpoenaed tapes involves naticr
.18 ^security.
I 19 - Vow, -there are -provisions under the Appeals Court
Order for the Special Prosecutor to tjo i n nd argue against f i

20
i
21 White House i f he rishes. "There sto longer i s e Special
i 22 Trcsccutor, *o who from ths Justice Dcpcrtnsnt v i l l represent
23 acrxur. ATTOJ=U:Y CKJCRAI. con::: x csn't give you a

24 -specific Tiznz, l>ut X tJtirJ: i t ' n innortrnt t!iat Judge Sirica
iiavc UIJ ins:up:: <?xplor-*.i1 tlicrsmjhly on IIO'JI niden. It

626
i 1
2
.be somebody ho As -thoroughly Coailiar with t h e caso And with
*tha-iplicai>lo iaw, nd iTCitrot goiaa.^to s t c t a which xtcn t'.i^
i- i s = i g h t atct/. . : - . . ".
.4 _ -. -^VDICS: iiSbcnk YOU, Ilr. .Bork.
S Oniurcupon, the press conference toas concluded.)
6
7
8
9
10
11
i
12
| 13
14
-w 15
16
17
16
i 19
.i
j| 21
;3 29.
.! 23
24
s
627
FOR IMMEDIATE RELEASE October 20, 1973
Office of the White House Press Secretary
THE WHITE HOUSE

October 20, 1973
Dear Mr. Bork:
aCCe]Pted thG
*igtions of Attorney General
and Deputy Attorney. General Ruckelshaus
1 Title28 Section508(b)ofthU
" I *? '
T e l ^ P , Tltle 28' SCCtiOn '132(a > Ofthe C *
7 " ' 1 Tltl 28
Regulations, it is now incumbent upon you to
th d U t i C8 a 9 S l i c i t o r G e n e
of and
of a n act
T ^ as
Attorney
f"
General. " 1 ' and duties
COnferen
t today Special Prosecutor
with Jh . X m a d e U a
P P " e n t that he will not comply
i 8 U e d tO h l m t h r U g h
Senertl S u nT " ' 8 t e r d a ' Attorney7
The itc^Z: ' ^ y- Clearly the Government
the Umfed States cannot function if employees of the
a r e free toignoreto fashi
Tt ^- -^
of the President. Accordingly, in your
capac lty of Acting Attorney General, I direct you to
discha r g e Mr. Cox immediately and to take all step,
" ^ t O ' e t U r a t O t h e department of Justice the
^ p e r f o r m e d hy t h
It is m y expectation that the D e taen f
fUU V i g r thC fafa

Z Z : r vtig.tioA
vtig.tioAand
d pro..tfoa.
tf
entr
Force "3tGd tO t h C W a t
- g a t e Special Prosecution
Sincerely,
RICHARD NIXON
Honorable Robert H. Bork

The Acting Attorney General
Juatice Department
Washington, D. C.
628
FOR IMMEDIATE RELEASE - October 20, 1973

.Office of the White House Press Secretary-
October 20, 1973
Dear Mr. Cox:
As provided by Title 28, Section 508(b) of the United States Code and
Title 28, Section 0. 132(a) of the Code of Federal Regulations, I have today
assumed the duties of Acting Attorney General.
In that capacity I am, as instructed by the President, discharging you,

effective at once, from your position as Special Prosecutor, Watergate
Special Prosecution Force.
Very truly yours,
ROBERT H. BORK
Acting Attorney General
Honorable Archibald Cox

Special Prosecutor
Watergate Special Prosecution Force
1425 K Street, N.W.
Washington, D. C.
629
THE WHITE HOUSE

WASHINGTON
October 24, 1973
MEMORANDUM FOR AL HAIG
FROM: LEN GARMENT
This is the product of this morning's

cussion among Bork, Bryce, Fred and
myself. It could be used as an opening
statement by the President tomorrow.
The principal substantive item is the
proposal for an advisory committee.
cc: Fred Buzhardt

Ron Ziegler
Bryce Harlow
630
10/24/73
I frankly recognize that we have reached a crisis of confidence that
words alone cannot dispel. There are deep suspicions in the country
concerning the conduct of the American government with respect to the
conduct of the investigations into Watergate and related matters that only
resolute action can quiet. I believe those suspicions to be unfounded and to
rest upon a misunderstanding of what we have proposed and what we have
done. But I also know that I must do far more than explain the reasonableness
of the compromise I proposed last week or the reasons why I could not accept
flat defiance of my orders by a member of the Executive Branch.
Instead; I appear before you tonight to answer questions about the actions
I have taken and the actions I am now taking in order once and for all to
dispel suspicions and make it possible to get on with pressing national
business.
You all know the action that I have taken. On Tuesday I ordered my
attorneys to appear in court and announce full compliance with Judge Sirica's
order as modified by the Court of Appeals. In doing that I gave way on a
deeply held principle of Presidential confidentiality and I must hope that I
have not done irreparable damage to the office and to the necessary confidentiality
that all Presidents of the United States have needed and that all future Presidents
will need if they are to govern effectively.
But there is a consideration greater even than the crucial principle
of confidentiality and that is the continued effectiveness and credibility
of the government of the United States, both at home and abroad. That i3 always
of paramount importance and in these times of international crisis with the
ever-present possibility of major-power confrontation, the effectiveness
and credibility of the American government is indispensable to survival.
That is why I ordered full disclosure to the court of the material it
sought. The court will now decide what material the grand jury needs in order
to proceed with its decisions concerning the appropriateness of indictments.
But I also recognize that that step is not enough. What is necessary
is to reassure the American people that the processes of American justice

631
remain intact and with their integrity unimpaired. I know that it does and that the
Department of Justice will proceed rapidly and even-handedly to investigate
and, where called for, to prosecute all the matters formerly handled by
the Special Prosecutor. But my confidence alone is not sufficient. The
American people must see that justice is being done. Toward that end I propose
two steps.
First, I am directing the Department of Justice to appoint aa a special
prosecutor a man of unimpeachable integrity and of experience in the field
of criminal investigation and prosecution. He must be a inan whose reputatio
and, even more, whose actions will bliow American:, of all political views that
these prosecutions are free of partisan 7ca) and political considerations of
any nature whatsoever.
Second, in order that that special prosecutor may have the counsel
and, to be perfectly candid about it, the protection lie needs from political
attack, I will appoint a special advisory committee of lawyers with national
reputations to oversee the investigations and prosecutions. I will, furthermore,
ask the American Bar Association, to approve the names I submit for
membership on this committee before they are appointed.
This committee will have complete access to the materials developed
by the investigations and will have the power to order that indictments
be brought or that they not be brought. It will, moreover, have the power to
require that evidence be sought or that it not be sought. Probably, there
will be very few cases of conflict between a responsible and experienced
prosecutor and an equally responsible and experienced committee, but it is
vital to the Americanpublic's perception of the course of justice that the
committee be there to counsel and, if the case should ever arise, to control.
These measures are extraordinary, but extraordinary measures are
required, and I am fully prepared to take them.

632
THE WASHINGTON POST--Oct. 31, 1973
Senate Democrats Ask

Independent Special
Prosecutor
By Lawrence Mryer Mr. Nixon also said, how-
and Martin Wll ever, that the new special V one knowledgeable Sen- suit brought by the commit-
wuKKwiM r* nui wnim prosecutor would not have ate source as bcinp. "fully in tee seeking*to enforce its
access to presidential docu- accord" with the resolution subpoena of five White
The Snat* Democratic that the caucus passed. This
caucus overwhtlmlngly p. mentsthe issue that ulti- House tape recordings relat-
mately precipitated the fir- source said the resolution ing to the Watergate fair.
proved a resolution last coupled with Mansfield's
nlfhl calling (or an Inde- Ing of Cox. Bork reportedly,, Sirica dismissed the suit
pendent ap*dal proarcutor has Instated thai whoever he - statement, could be read as earlier this month, ruling
to continue iht investigation appoints must have access a message to President that he had no jurisdiction
and p>oarcutlon "of erlmlnnl to ..whatever evident* rth* Nixon that he should modify over It. Ervln said he hoped
aclloni arialni out of the needs tU>: Investigate and hla position on the povt'ri that the bill could be passed
Watergate affair and all of prosecute In the Watrrgatr of the special prostoutcr. by the Senate "within 48
Ita related activities." affair"** and^nther matters^ "The problem's not going*to hour*" without referring It
coming-undrrshla .Jurisdic- go away, I think thai"4^he to committee arid that the
The resolution, sponsored tion and .thai ,no procedural. signal," this source said. House of Represenatlves
by Sen. Sam J. Ervln Jr (D- restraints should.br placed 2r; A senator present at Iht would approve the measure
N.C.), chairman of the Sen- on hls~actions by the Whlle'- caucus dlaagrrrd, however, promptly In order to expe-
ate select Watergate Com- " House. '" that ih# caurua action car- dite the committee's suit,
mittee, was approved follow- ried anv Implied threat to which is now before the
ing a 2V4-hour meeting In Mansfield, who received a President M>on but rather Unllrd Slain Court n( Ap
which a wide variety of pro- standing ovation after he -was aimed at lining up sup- peal.
poaali for continuing the spoke, told the caucus that port for a move to override
Watergate Investigation the Ervln committee Is pres- Srn Howard.H. Baker (It
were reportedly discussed. a vu> oX k special proa*cu- Tonn .) vice-chairman of the
ently the only "duly-consti- lor bill passed by Congress committee, that the power
The Democratic caucus' tuted and equipped (bodv) if Mr. Nlinn dors not go of committee to lsue a
vote came on the eve. of the to continue an Independent, along and sign It This sena- subpoena is n "Idle power"
resumption of the Water- Impartial Inquiry into the tor said that Mansfield's If the committee cannot en-
gate committee's hearings. Watergate affair. That will suggestion that the Ervln forr* Its subpoena In court
The committee will open ita remain the case unless and committee be given more
until there is at least desig- Resides drsllng with the
investigation Into campaign lime and more authority ls*ur of the tapes, the tcitfa-
financing with testimony nated a new special prosecu- was not discussed.
tor whose powers are as iMInn also ti understood In
from Berl Bernhard, 1872 br adequate to resolve the
presidential campaign man- broad and whose Integrity Ervin, who was under-
are as great as that which stood to be opposed to ex- difficulty the committee I*
ager tor Sen. Edmund Mus- having obtaining I'restdrnt
ic ie. (D-Malne). surrounded Archibald Cox." tending the life of his com-
mittee, said after the caucus Nixon's bunk record* from
Ervln'a resolution was ap- Mansfield also endorsed that the. Senate still had the Key HWcayne bank of
proved after ^Senate Major- legislation Introduced by four months to act on ex- Charles G (Bcbe) Rebozo,
ity Leader Mike Mansfield Sen. Birch Bayh (D-Ind.) an(J tending and expanding the Mr Nixon's close friend Re-
(D-MonL) had opened the sponsored by a majority of probe U the need arises. ho7o hmn't responded to a
discussion by bringing up the Senate calling for the According to reliable subpoena from the commit-
the future of Ervln's com- creation of a special prose- sources Mansfield did not tee (or the. records.
mittee In conjunction with cutor by act of Congress, tell Ervin about his proposal The committee will re-
President Nixon's action on with the prosecutor to be prior 10 presenting It to the sume lu hearings todav
Oct. 20 ordering the disappointed by the courts. caucui. The resolution that with the testimonv of Bern-
missal of Special Watergate The effect of the Ervln Ervin finally presented for a hard, former Mujkle cam-
Prosecutor Archibald Cox. resolution, which directs votethe only resolution paign manager BcrnharU
"Now," Mansfield said In Mansfield to consult with put up to the caucua on the will be followed by Clark
a statement he released and minority leader Hush Scott subject"Just sort of MacOrcgor, former director
read to the caucus, "It Is no (UPa) "with a view to the evolved" after SV4 hours of of the Committee for the
longer possible. In my Judg- creation of the office of an discussion, according to one Re-election of the President.
ment, to contemplate the Independent prosecutor." is source. The Ervln resolution Bernhard and MaeGrcgor
shutdown of the Ervtn com- to endorse the concept of was accepted with only a were described yesterday as
mittee On the contrary, I Bayh's legislation without few inlrca heard voting "transition witnesses" who
would hope and expect that taking upfor the moment against It, according to one will help move the commit-
the Senate would consider at leastthe question of ex- senator. tee from the scco/d phase
forthwith the extension of tending the life and expand- of Its hearings, concerned
the committee, with a man- During t morning execu-
ing the jurisdiction of the tive session of lh commit. with ><M-allrd c.mpaiKn
date enlarged to Include all Ervin committee, which Is I N , the commute* author- dlrtv trirks" Into the third
the matters which were un- now required to file a report ized Krvln to Introduce a and final scheduled phase of
der consideration by the and end its business by Feb- bill that would cUarly give campaign financing
special prosecutor's office in ruary 1974 The committee announced
the Justice Department at the United State* District
Mansfield, who was the Court her* Jurisdiction to that It had applied for lim-
the time of the summary ited lmmunlt> from prosecu-
dismissal of Mr. Archibald prime force behind the cre- hear a suit by any congres-
ation of the Ervln commit- sional committee to enforce tion for three prospective
Cox" witnesses Robert Lilly.
President Nixon. ,.van- tee, told a reporter that he a subpoena It had Issued to
favored Riving the commit- anyone, including the Presi- Kobcrt Isham and John
nouncedlast2 Friday ^ night Meier
that" acting jAttorney "GerP tee a new, long-term man- dent.
date "if we don't get the The legislation is designed Lilly md Isham are offi-
eraURoberUH. Bork .would right kind of a special prose- cials of the Ansoclatcd Milk
appolnt'a'newîpecial prose-'" to overcome a ruling by
cutor." Producers Inc . a diary farm-
cutor":r-who-**-wlU -~ haves , Mansfield was described Chief United Slates Dlatrict ers' cooperative that gave
"Independence'thls week^. Judge John J. Sirica in the
633
more than $200,000 to Prcsl-

dent Nixon's re-election White Hou<e from out of.
campaign prior to the Imple- town speaking engagement*
mcmatlon of an Increase In Ervln In New Orleans and
government price supports Baker in Chicagoand thai
for milk Meier li a former they had had no opportunity
employe of billionaire re- to consult with their uff s
cluse Howard Hushes, before the meeting.
whose contribution! In 196S Although Baker i d In re-
and 1970 of J100.000 to Mr. sponse to a question that "I
Nixon through Robozo are do not feel that we wer
being investigated hy the used bv the White House"
committee * '"tor. m ^ ^
Followlna a mornlaa cxi-c h.h.n
utlvc seMion of the comma, Nln ,h. Y W t t ,
tee. Ervln and Raker dl.i-
c u w d with reporters the
meeting that thev had had * " I"" 1 * l 0 ^ n<J U a t
with President Nixon at the had not iccep<d ||.
White House on Oct 19 rrnin
* PollUcal point -of
when he proposed his ar
rangement to turn o\er par-
tial Iranaerlpti oiithv itptt Mr Z -i#
to the cmcnti"> T *" Mxon aawned at hi.
Although I h 1 W Pr. eonf.renc. l . n rrld>v
wer* H I Jn, cojfcniitoTy nlrtt lhal "Mr. Co* * . . * ,
context witir fcotJr vaaton
exprwilng hop* that I n * o f
fer from Mr. Ntion, would
be reinstate K r v l i and
Baker bolX- i(reie<V that * e had nothing to do with
they had mad* no M r * * - "r Cox'a InvcMtetUnn"
mont to accept th off.r on nd that during the While
behalf of t b * commute*. - | t
waa a proposal, not a conv Md tha, l h j y ,d c o m i c t
promise or an agreemtnt," Mr Cox to work out a sulta-
Krvtn told reporten. We agreement . . We were
"over asked to approve ,>
Krvln said he and Baker agreement to which Mr Coi
told Mr. Nixon that they
was a party. E n -| n , , | d
would recommend to the
committee that It accept the Asked if he thought Cox
offer but that they made It hart been coi rect in refusing
clear that they have no '"accept le,> than total ac
authority to i * c p t the offer ceis to the tapes and other
for the committee. documents that he was seek
Both senators recalled int. Krvin responded that
again that they had been he requirements of Coxs
Investigation and the com-
called hurriedly to the
mittees are different
634
NEW YORK, SUNDAY, OCTOBER 28, 1973
Nixon Plan on Prosecutor

Is Opposed by Mansfield
Senator Wants Watergate Aide Named
by^Courts-^-Ford Believes^President .
Regrets H'tsAttatk on News Media
'"WASHINGTON. Oct. 27 s public opinion polls reported

President Nixon's position thnt hnt Mr. Nixon's populnrity rat
the new spccinl Wntcrgnte pros- ing had fallen below 30 per
ecutor will be nnmed by the cnt for the first time. ^ ^^r
Administration rather Ihnn the ht thnt
courts drew continued opposi-
tion today from Dcmocrnts In
Congress. that
"No soap" wm the comment c p p ] A j
that Senator Mike Mansfield, icpcndcnceiand^lhcc/^dmlnis
the Senate majority, leader, ;ralkirr<pcoopcration.
made about the President's an- Mr. Mansfield, a Montana
- nCUncement- last - night at" his Dcmocrat,-said, however, that
news conference. e would support a bill tha
.. in another development stem rails for a court-appointed spe
mlng from the news conference. ial prosecutor to guarantee the
Representative Gerald R. Ford, prosecutor's independence. The
the Vice President-designate, bill has 53 co-sponsors, Dem
said that he believed that Mr. ocrats and Republicans.
Nixon, "on second thought, Senator Mansfield said, "I
probably wished he hadn't" has to be a special prosecuto
made such a vigorous attack on who had the same kind o
the news media. The President authority that Archibald Cox
had characterized some recent had."
news reports ns "outrageous Representative Thomas P.
vicious, distorted." [Details on O'Neill, the House Democratic
Page 47.] leader, said in a statement, that
And In Chicago, the American he did not believe that the new
Bnr Association declared thnl i prosecutor "will bo acceptable
could not accept an appoint to the Congress and the Amen-
ment of a prosecutor by Mr enn public under the terms the
Nixon and called on Congrcs President outlined."
to create nn independen After six dnys of national
"Office of Spccinl Prosecutor. turmoil that followed the dis-
The continuing controversy missal of ,Mr. Cox, Mr. Nixon
over Ihc successor to Anc
Cox as special prosecutor cam*
Nixon's Plan for Prosecutor Opposed by Mansfield
Continued From P*K 1, Col. 2 lowed similar comments by could be as low as 28 per cent As recently as mid-June, Mr.
other .Democrats immediately or as high as 30 per cent, which Nixon had an approval rating
agreed last night to appoint a after Mr. Nixon's news, confer- was Mr. Nixon's rating in the of 45 percent, with 45 per cent
special prosecutor through the ence. But some comments were last previous national poll, voicing disapproval and 10 per
favorable to the President. cent having no opinion.
Justice Department. Mr. Ford, the House minor- taken Oct. 5-8.
Independence was clearly the ity leader whom Mr. Nixon has Those questioned in the poll
1,500 People Questioned were also asked: "Do you think
key issue. Attorney General El- nominated for Vice President
In the latest poll, about 1.500 President Nixon should be lm-
iot L. Richardson 'resigned and to replace the resigned Spiro T. people were asked the follow- peached and compelled to leave
ill detipty. William D. Ruckcls- ARncw, described the Presi- ing question in personal Inter- the Presidency or not?" Thirty-
dent's proposal for A new
haus, wns dismissed because prosecutor as a fair compro- views: "Do you approve or dis- one per cent answered yes. JW
the independence- of Mr. Cox to mlse. approve of tho way Nixon is per cent no and M per cent had
pursue tho Watergate inquiry "My udcrstandlng Is that re- handling his job as President?" no opinion.
wherever it led had been cur- sponsible guidelines would be The polling was done in the A poll on the same point In
ailed l>y the President. established for the prosecutor period in which Mr. Nixon dis- Aug. 3-6 showed 26 per cent
Mr. Cox hml soiiKht to ob- to keep him from irrelevant missed Mr. Cox and Mr. Rich- for Impeachment and 61 per
aln Presidential tape record- ureas," Mr. Ford said in an ardson resigned but before the cent against. One in June 22-25
and documents that the interview. President announced his deci- showed 19 per cent for im-
While House refused to yield, Ho said that he felt the Presi- sion to turn the tapes over to peachment and 69 per cent op-
asserting that theyy were con- dent was bending over back- the Federal court. posed.
ident In). Mr. Cox went to ward to bo cooperative, and
ourt. The President lost in that the xpcclal prosecutor pro-
United -States. District ..Court posed by.the President_would
nd in the Court of Appeals. be "adequate for the present
Me then tried to force a com- circumstances."
promise on Mr. Cox. When Mr. The data indicating further
Cox refused to accept it, Mr. slippage in Mr. Nixon's popu-
Nixon dismissed him. larity came from the latest Gal-
TheÂctin Âttorney General, lup Poll, taken Oct. 19-22. The
M^Vg$prk;f*.hasf;indicatedNj,lhat Gallup organization said that
he*tooj^will *reslgnt if,jthejjhew tlje data had not yet been fully
special TrosetutoT'is'nojLgiven analyzed, but that so far they
independence^jf.actioru*, A indicated an approval rating of
""The "adverse reaction ôf Mr. 29 per cent for the President
Mansfield and Mr. O'Neill fol- It said that the final,figure
636
NEW YORK, MONDAY, OCTOBER 29, 1973
Nixon and Bork Reported

Split on Prosecutor's Role
plaosd in charge of the Oovern- the department needed conunu-
meafs WstergaU Investigation ity "
Jifferencc Over Access should have the option of suax If the conflict between the
Acting Attorney General and'
to Documents Coald the White House over the)
dentiai documents to which be special prosecutor's role even-
Delay Appointment waa entitled and that were tually leads to Mr. Dork's resig-
needed as evidence in a prose nation, the effect on a Justice
cuUou. Department shaken by the loss
By JOHN M. CRrWDSON of \tx top officials would do
"Have I communicated lo the still further damage to morale
WASHINGTON. Oct. Vr An White House my feeling that and efficiency.
jipparent conflict between Pres- the special prosecutor ought to Mr Dork was reportedly con-
ident' Nixon and his Acting At- be free? The answer is yes." he sulting with.top White House
aides over the weekend on pos-
torney General. Robert 1L Dork. said, adding that no "reputable sible nominees for -special
ever the Independence of a new man with a reputation to main- prosecutor and on the guaran-
epecjlal Watergate prosecutor tain" would accept the post tees lo be provided to him In
t'delay the naming of a without such assurances. seeking Presidential materials,
ement for Archibald Cox Possibility of Quitting but it could not be learned
i it U reaoived in the next whether any resolution had
la the Interview, Mr. Boric been reached.
also raised the foealblllty that Not Pcfer.cn
>SWdent Nixon announced he might rectgn from the Jus-
at 3i new* conference Friday Mr. Bork also expressed the
tice Department *tf a special hope thai he "would be able
B M t that Mr. Boric would ap- prosecutor wtre set up end his to prevent" the appointment of
point a new proMOttor early Independence were Interfered s person who he did not be-
that Vcck. but ha added that with." Ijovc was suited for thr 1".
tM-Whita Houaa had no farfen- and he implied that ho would
-My position Is untenable un- resign If he were overruled
do of providing him with
l*sa these investigations and These prosecutions have to
Tualiiimtiil documents" auch ^"be earned on correctly, and if
prosecutions ar hsndlad cor-
M those Mr. Cox had repeated. ---thought they were not going
rectly," he said. ;3> be because of the person
Mi. Bork, on the other hand,
tuuPl it be known that ha be- Elliot L. Richardson ehoas lo ^rhosen. 1 couldn't tolerate
resign as Attorney "General a that." he said before the Presi-
llrret . strongly that whoever dent's announcement at his
tekaa, the Job from which Mn _ u O rather rather thanthan dismiss news conference last Friday
Co* yt>* <U<mlaad a Veete ago. for his refusal,to obey
nfjrht. i_ i i <%
-oig&t not to have any strings *A *$der by Mr. Nixon t to
He also said he nail vig-
on.hjm from anybody." pub"f In the courts his' quest ecstrd "five or six names to
. ^C#x Aaka fluaranteee forthk nine White House Upes. the White House who met his
Mr. Cox maintained in a tel- To do so, Mr. Rlchsrdion prerequisites for the job
tvWM interview today that it isld," would hsva violated hl previous expenence as a prose-
pledge to the Senate when he cutor, something Mr. Cox ma
lwM."eaaendal" that hU re- not have, and someone who Is
pUoMftent have statutory guar- waa oonflrmed ai Attorney Gen not now within the Govern-
antee* of freedom and inde- era! last M*y that the ipecU
paedeace from tha President. prosecutor would have full u Mr*. Bork declined U> name
j i t l i ^ h a l l e f l R a *aO"r his choices, but they reportedly
But Alexander M. Haig Jr., do not include Mr. Richardson,
tha WWta House chief of itaff. claims of executive privilege by Mr rtui-kclshiius or Henry t.
declared In a separate teiaj*. >: President. P e t e r s , the Assistant' AUSfe
.William O. RiickcKhmis, Mr. ney General, who has tempo-
iloo interview that the White chardsnn's former deputy,
House intended "to appoint a rarily taken control of the
/as discharged by the rresi- department's Watergate case
special prosecutor with the dent a iihorl lime later for also One or two. he said, are Demo
kind of independence the Pres- refusinic to ilismm Mr. Cox. cruts. and none of them u
ident described on Friday." Mr. Ilork. who as Solicitor from Yule. ^ f t white
Mr. Borfc, who U on leave as General wns next In command,
1 professor at tha Yale Law
agreed to carry out the order, Ho"srrch.cf of" staff d one of
lie has said ho had planned to the officials with whom nllllt
Mr
School. said specifically. In an resign Immediately afterward nrk i believed to be <- ;
Interview with Tha Nrw York but was persuaded by Mr. ing over the appointment. sald|
Tunea. that he thought anyone Richardson to stay on "because
637
* today that he did not believe a anti-Nixon demonstrators dur- lludc to ohtnin auch matwlils
new prosecutor "will have lo inc the 1072 Presidential cim- undrr lhesi circumstance!.
' make a pledge of any kind" not pnicn. and the activities of the
Mr. Cox. who as prosecutor
to sprk additional White Home White House's special InveMi-
hd no statutory authority to
taQfiJ or other confiricjnfr} doc- gnlions unit known-- as the
subpoena such materials, said
uments. . "plumbers."
[today that he would prefer that
Predicts Approval
ian independent prosecutor, au-
Would Have Checked Gift] Senator Birch Bayh, Demo- thorized by Congress, be ap-
"Nor do I think he should." crat of Indian*, appearing on pointed by the courts rather
General Haig continued, "and if ll>e American Broadcasting than tne President, even though
he were the fyt>c ilwi would Company'! "Issues and An- in either case his autonomy
feel enc timliered m that way. swers" program, predicted that would be guaranteed by law.
he's perhjip^ not the miin that Congress would approve res-1
Fels Less Certain
we would want." ohilion introduced last week
that would authorize tins ap- However. h conceded that
Mr. Nixon n^ro-d last Mon-
pointment of a special Water- he was less certain about the
day to surrender the nine orig-
gate prosecutor by the courts. constitutionality of a Congres-
inal recordings of conversations
The measure, which has slonally authorized prosecutor
between him and his aides to
'gained S3 co-sponsors in the who was appointed by the
the United States District Court
(Senate, was endorsed yesterday court.
here. His decision name two
days after Mr. Cox was dis- (by the American Bar Associa- On Friday. Mr. Boric ex-
tion in a resolution, passed by presaed strong reservatmft*
charged for refusing to acqui-
jthe organization's board of about the effort In Congress to
esce in the President's order
'governors, calling on Congress1 net up a prosecutor-ultimately
barring him from seeking the
to crcnte an Independent "of- answerable to anyone except
tnpes through thê courts
fice of special prosecutor." the President,' on the ground
The former special prosecutor
and Harvard law professor con- General llalg (aid today that that criminal prosecution ought
ceded today that his subpoena although the Nixon Administra- to be a function of live execu-
for thr nine recordings had tion welcomed the views of the tive branch.
been "only lite first step in Dar Association, "no President Rut Mr. Cox suggested that
serkmg n grenl dcnl of trupor- can run this great republic by there would be no real prohlem
tunt evidence from the While being the victim of a viewpoint if Mr. Nixon and Congress both
.House." of a particular advocate of a moved to appoint their own
Had he remained in office. particular point of view." special Watergate prosecutors.
Mr. Cox said, he would have "I don't think President yix- "I think Coogress could
also challenged the ('resident's on is going to feel encumbered easily legislate the Presidential
assertion of executive privilege by that recommendation," Gen- appointed one out of existence,
I n . refusing to release certain eral Halg said on the Columbit that would surely b constitu-
information concerning cam- Broadcasting System program tional," he said.
paign contributions from big "Face the .Nation." Dut he Asked whether h might
dairy Industry cooperatives added. "He might not ignore succumb to sentiment in Con-
that critics have linked to a It, either." gress to take hack his old job
1071 Increase In tnilk-pncc President Nixon Raid at his if. it were re-establUhed by
supports. news conference that the new law, Mr. Cox, who was pack-
Mr. Cox emphasized, on the special prosecutor could expec ing joday lo leave for an e-
National Broadcasting Com- "Independence (and| total coop- tended vacation In Maims, con-
pany's "Meet the Press" tele- eration" from the White House ceded that "1 ftippose If " I
vision pruRram, thai he had no except for being denied docu were pressed that I would hnâ
hard evidence that the White menu, recordings or other.ma lo consider it." .'
House was conrrrned about lerlnls "involving a conversa- Dul he added. "It would be
*ome of thj aspects of hi* tion with the President." unwise for anyone to offer tt
. Investigating. Information from such m i - to me. and unwise for me to
"But." ho added. "I gathered erials would bo provided If it tike it."
tho impression from the At- as "needed." Mr. Nixon went
torney C.CTieral thai he wi <>c- Connalty Reaction |"
m. hut ho did not explain how
r.aiimmily subject to calls" AUSTIN. Tex.. Oct. 28 (V*t)
i determination of need wouid
froii the White House over the Former Treasury Secretary
x> made.
scope of the Cox Inquiry. John B. Connally said todiy
Mr. Bork's position. Judging
that President Nixon owed lift
Jn Its issue on sain tomorrow. 'rom Tils public and private
country a better explanaligrt
Time niocn/.ine reports thnl Mr. ttatements, appears to be that
>nly the documents or tapes than he gave for dismissing
Cox was dismissed after the Archibald Cox and Mr. Nixoq
White llou.se ch.illengrsl bis themselves might prove to be
admissible at evidence in a should have turned OVKT th
determination to pursue four Watergate lapes months agh*
sensitive avenues of Investiga- criminal proceeding growing
out of Watergate, and that the jH spoke on a sute press rrnnet
tion, including a progrnm of television show "Capful Eye."
"national security"* wiretaps on prosecutor should have tha lat-i
Government officials and news-
men.
The three other areas ob-
jected to. according to the re-
port. Involved a l!>70 operation
|that" raised J4-milhon lor Con-j
gressional and gubernatorial1
candidates, the handling of
638
MILTON VIORST
"7TRetraction on Bork
Robert H. Bork who the brink of thorough deci- pathy with Nixon's effort to
became acting attorney mation. circumvent the prosecutors
general on Oct. 20 when he A lesser man than Elliot al process by dismissing the
alone was willing to take Richardson would1, at such a prosecutor. But. being a
the responsibility for firing demonstration of support classical conservative, he
Archibald Cox as special from his subordinates, have was impressed by the argu-
prosecutor' is not a very reflected on*the sweet re- ment that the institunons of
happy man these days. venge he had within his government, first and fore-
I confess I committed an grasp against the man who most, had to be upheld. So
injustice when, during the commanded him to perform he did what Burke and
tumultuous weekend -of the an act he considered both Hamilton would have done
great Justice Department dishonorable and harmful to he took the responsibility for
purge, I angrily wrote a the country. But not Rich- firing Cox. *
oelurnn suggesting that ardson. -. .' '; ' , '*" Having fired Cox, howev-
.Bnrk performed his execu- That's why it's o-infuri- er. Bork defied the White
niai of Cox as an act of p e r - ating to read of Nixon's House on the very next busi-
sonal opportunism or, at assertions to recent White ness day by declaring in
least, in conformity with the House visitors that Richard- clear contradiction to a
Nbconite ideology of politi- son reneged on an agree- statement by presidential
ment to fire Cox and then assistant Alexander Haig
cal expediency. . lied later amended to that the special prosecu-
I'd like to take it back. I "misstated" to the press tor's office would not be dis-
have since found out that to, cover up his change of banded.
Bork met with the then at- heart.
torney general, Elliot Rich- In fact, the only misstate- In the confusion of those
ardson, and his deputy. Wil- ment Richardson may have first days, he told Cox's
liam Ruckelshaus, on that made was to omit any dis- staff to stay on, to keep its
fateful Saturday afternoon closure of his opportunity to autonomy of the Justice
and the three of them ago- counterattack against. Nix- Department and to remain
nized over how to respond on by bringing the.Jus- in its separate downtown
to the crisis in the nation- tice Department, and per- office suite. He then began
al interest haps the entire administra- . to promote the appointment
Richardson, insisted that, tion, down with him. of a successor to Cox, and
because of a personal
pledge to Congress, he
could not follow Nixon's Bork who," as solicitor Through all of this. Bork
oilier to fire Cox, and there- general, was then the No. 3 has not been happy. A quiet
fore hatl to resign. Ruckels- man in the department and a private man, he was
haVs said he considered and implored him to exe- tempted only last June to
himself subject to the same.' cute Nixon's order. They leave the faculty of Yale
imperatives. v-' . ; argued that, reprehensible Law School by the prospect
Furthermore, it was clear as the -order may. be, the of- arguing the fine points of
that at least three of the "' structure of the department law as the solicitor general
assistant attorneys generals Jiad to be preserved intact. before the Supreme Court.
Thomas Kauper in Anti- Bork was troubled by the Instead, he has found him-
trust, Stanley Porringer in dilemma. He was known as, self in the middle of a cy-
Civil Rights and Henry Pe- . ideologically, the most con- clone, running the Justice
terson in Criminal would -. servative man in the.de- Department as acting attor-
also resign, out of loyalty to 'partment. - He - was also ney general, while trying to
Richardson and Ruckels- ,known UJ have expressed . ^be solicitor general on the
jhaus, in preference to firing "reservations about Cox's' side. For him, it's not been
cox. y.v1;'-' "v*-v.v. mandate_which led'me. Jun.'v,
: Whales more, the senior mistakenly,~~\to assume he _ ' But he's 6een holding the
members of the staff of, was enthusiastic about Rip- Justice Department togeth-
these three sections said" pressing this mandate.' But er, and he believes in the
it, if their chiefs left in be also admired Richardson correctness of what he's
itest, they too would re- and believed Richardson doing. Any suggestion__I.
At that" moment, the ' correct in the stand he took. made to the contrary^ I
Justice Department was at Surely, Bork had no sym- "hereby take back.
INDEXED .f,
Q F.I tr> . l\(J--
N0V2 61973
FBI
639
)V7
STonELunu
THE REAL STORY
OF THE WATERGATE PROSECUTION
BY Richard Ben-Ueniste
AND George Irampton, Jr.
simon nnn SCHUSTER

New York
640
142 STONEWALL
Jill Volner had left Washington early that evening for the wedding
of a close friend in New York, hoping that nothing would occur over-
night. Frampton called her hotel from the Special Prosecutor's office
to reassure her that the office apparently still existed. When she
arrived in the hotel lobby at about 2 A.M. a uniformed desk clerk came
rushing across the lobby, calling, "Mrs. Volner, Mrs. Volner, you have
messages." Volner was perplexed, since the hotel staff had no reason
to know who. she was. The message from Frampton, slightly garbled,
read: "FBI has seized your office; everything OK."
In fact, there continued to be confusion for days about our precise
status. It remains unclear whether Nixon's failure to fire us all and
issue a formal regulation abolishing the entire office was intentional,
or whether it was an oversight or just a muffed job. There have been
reports that the President really thought he was getting rid of every-
body, or that he imagined that by chopping off the head the body
would die. Reports have surfaced that he instructed Bork to fire Ruth,
Lacovara and Ben-Veniste as well as Cox but that Bork refused on
the ground that that would be an outright obstruction of justice, an
attempt to emasculate the entire investigation. Bork has said it didn't
come to that, but has admitted that Alexander Haig regaled him with
the alleged "bias" of the Cox staff.
The President's failure once again to do his dirty work artfully
would come back to haunt him. It was the same pattern we had seen
over and over again in the White House containment of Watergate
equal measures of corrupt intent on the one hand and incompetence
on the other.
The reaction in the nation which began to erupt within minutes of
the first news broadcasts was as astonishing to us as it must have been
to the beleaguered White House. Thousands and thousands of un-
solicited telegrams and telephone calls began to pour into Washington
to the White House, to our office, anyplace people could think of to
direct them. Many had seen Carl Stern of NBC and Nelson Benton
of CBS first reporting the news of the Massacre as they stood breath-
less and shaken on die White House lawn. Both networks prepared
for ninety-minute specials later in the evening. Reporters and network
cameramen rushed to the Ruckelshaus and Richardson residences,
badgering them for some statement or explanation. Democratic sena-
tors immediately issued vehement and outraged counterattacks, call-
ing the President's action "reckless" and saying that it "smacked of
641
Senator HATCH. Perhaps the true test of a good judge is whether
he can adhere to the law when the facts are really sensational. A
judge with less dedication to the law may sometimes be tempted to
decide a case in a way that might get local attention or national
attention.
With that introduction, I would like to just examine with you
one that has just recently been examined here. That is the Oil,
Chemical and Atomic Workers Union v. Cyanamid case. As you
know, that case involved the sterilization of female employees in a
plant where lead levels would endanger a fetus. Could you give us
a fuller picture of the facts of that case?
Judge BORK. Well, that was a case in which there was a particu-
lar department in the American Cyanamid Company where they
could not get lead levels in the air down. They had them down as
low as they could get them. At those levels, there was a threat to
do serious damages to fetuses.
Now, everybody conceded that the company could have said
women of child-bearing age are hereby fired. That was conceded.
Or the company could have said women are transferred to another
department. What the company did was give women a choice: You
can be transferred to another department at a lower paying job; or
if you want to, surgical sterilization is available to you.
The company did not do it. They just explained that there was
that option.
Now, the question was simply a statutory question of whether of-
fering the choice, the option, was a hazard in the workplace. When
I was discussing this case with Senator Metzenbaum, I said that
OSHA, the Occupational Safety and Health Administration, said it
was not a hazard. I was wrong about that. The Occupational Safety
and Health Administration said it was a hazard. It was the Occu-
pational Safety and Health Review Commission that reviewed
OSHA's decision that rejected that and said it was not a hazard.
We affirmed OSHA on the grounds of offering a choice; no force,
no coercion, just offering a choice for the women who really wanted
to keep those jobs. It was not a hazard. That was a unanimous
panel. There was no attempt that I can recall; certainly, we did not
rehear it en bane so apparently the full court did not regard it as
an outrageous decision or a troublesome decision. The Secretary of
Labor did not appeal, did not try to go to the Supreme Court.
It was a sad choice these women employees had to make. It was
very distressing. The only question was, should they be given a
choice? And is giving them a choice a hazard? We did not think it
was under the act.
Senator HATCH. That had been reviewed by the Occupational
Safety and Health Review Commission?
Judge BORK. Yes.
Senator HATCH. Who are experts in the field.
Judge BORK. Yes, and we owed them some deference, too, in their
interpretation of the law.
Senator HATCH. Sure. Well, it does seem to me that this steriliza-
tion policy might have been sex discrimination that is actionable
under title VII.
Judge BORK. We said in the opinion it might be.
642
Judge BORK. But that was not before us.

Senator HATCH. I presume the reason that is so is because only
female employees had to go through this process or procedure.
Judge BORK. That is right. We did not decide that case because
that was being litigated elsewhere, but we said it might be.
Senator HATCH. YOU did say it in the opinion, and you did consid-
er that issue, is what you are saying? You did not consider the
issue, but you said it in your opinion that it might be?
Judge BORK. Yes.
Senator HATCH. In other words, the union had already sued
under title VII, and they had settled that suit?
Senator HATCH. Okay. So this was the second suit based upon the
same facts?
Judge BORK. Yes, but under a different statute.
Senator HATCH. NOW, the principal criticism that I have heard
about your opinion in this case is that you accepted the administra-
tive law judge's determination that it was economically infeasible
for the employer to reduce the lead levels to a degree necessary for
fetal safety.
Judge BORK. Well, you are supposed to accept their decisions of
fact unless there is clearly no substantial evidence for them.
Senator HATCH. SO it is not unusual for a hearing judge to rely
on an expert's opinion?
Judge BORK. At the court of appeals level, we do not redetermine
facts unless there is no substantial evidence in the record.
The CHAIRMAN. Would the Senator yield for a clarification on my
part?
Senator HATCH. Yes.
The CHAIRMAN. Judge, so I understand the case, and maybe
others, was the plaintiff in the case the Secretary of Labor? Did the
Secretary bring the case?
Judge BORK. Well, I am trying to think. No, it was the union
the Secretary of Labor did not file a brief.
The CHAIRMAN. The Secretary of Labor argued the same position
the union was arguing? That is all I am trying to figure out.
Judge BORK. I do not quite recall, Senator.
The CHAIRMAN. DO you know, Senator Hatch?
Senator HATCH. The Oil, Chemical and Atomic Workers Union.
The CHAIRMAN. Yes, my question is, was the Secretary of Labor
taking the same position?
Judge BORK. NO, I think no.
The CHAIRMAN. I am just curious.
Judge BORK. I have a note here, which I agree with. In some
cases, the Secretary of Labor will bring an appeal where he agrees
with OSHA, the Occupational Safety and Health Administration,
and disagrees with the Commission which has reviewed OSHA.
The CHAIRMAN. SO OSHA came along and said this was a hazard.
The Commission that reviews OSHA said it is not a hazard. The
Court agreed with the Commission that it was not a hazard.
Judge BORK. Right. The Secretary of Labor could have appealed
from the Commission decision but did not, and did not file a brief.
If the position the Commission, the panel, took was so unaccept-
643
able, it is hard to see why the Secretary of Labor would not have
appealed.
The CHAIRMAN. But had you, the Court, concluded that eliminat-
ing lead was economically feasible, on the one hand, or that this
was coercion, either of those two things, then the company would
have lost and the plaintiffs would have won.
Senator HATCH. Right. But the important thing is how does the
judge determine technical, scientific questions like this except by
relying on experts?
Judge BORK. We did not rely upon the experts directly. We relied
upon the finding of the administrative law judge who had heard
the experts or had heard the evidence.
Senator HATCH. Right. In other words, she took the evidence, she
took the experts, and she then found the facts to be as they were
stated in the case, and you relied on it as an appellate judge.
Judge BORK. Yes. I do not recall that anybody challenged that
factual finding.
Senator HATCH. NO, I do not think anybody did in that matter.
The CHAIRMAN. Let me ask a question again, just to try to get
the facts. I am trying to understand this.
When the administrative law judge's finding came to the court,
the circuit court, was there evidence, even though she rejected it,
that it was economically feasible?
Judge BORK. That I do not recall, Senator.
Senator HATCH. NOW, let me ask you this: Were you alone in this
case or were you joined by another colleague?
Judge BORK. I was joined by two other colleagues, one a visiting
district judge from California and one Justice Scalia, then Judge
Scalia.
Senator HATCH. Scalia again. That guy seems to get you in trou-
ble.
Judge BORK. I am going to speak to him about this whole thing.
Senator HATCH. YOU had better stay away from him. On second
thought, maybe we had better get you there so you can have a good
influence on him on the Court.
I think one further point. The company was charged with pre-
venting any women of child-bearing age from being exposed to
lead. Now, could the company have been charged with a legal vio-
lation if it had simply fired all the women in that department?
Judge BORK. NO, not under this statute. If they had said any
woman of child-bearing age is hereby discharged, there would have
been no challenge. It would not have been a hazard under the act.
Or if they had said that they wouldand the union conceded this,
the argument. If the company had said that only sterile women
will be employed, there would have been no argument about haz-
ardous policy. It was merely the fact that the company said, you
have got to leave this place; if you do not want to, there is the
option of sterilization. That is all that happened.
Senator HATCH. SO, in fact, the only reason the company was in-
volved in the lawsuit at all or was sued was because it gave the
women a choice of having an operation or leaving work. So, again,
644
there is a situation where I think the actual facts are distorted by

people who are critics of yours, and I think that is one of the
things that you just have to take into consideration as you look at
this nomination. I hope our colleagues will do that.
Now, as I understand it, I am just about out of time.
The CHAIRMAN. Yes, you are, but I have interrupted you a couple
times. If you want, take a few more minutes. If the next line is
going to be more than 5 minutes or so
Senator HATCH. Let me see if I can get through it in 5 minutes
because I think it is important for you. I think what I have been
trying to do in these various days is I have been trying to bring out
just how important your record is and how the facts speak louder
than words, the words of your critics, and how unjustly you have
been treated by certain groups in this society and, I might add, I
think even by people who are judging this matter, even in the
Senate. I think some of them have not looked at these matters and
have not looked at them carefully. I think you deserve that type of
treatment for this type of a position, and it really should not be a
political decision. It ought to be made in a rational way. Maybe we
ought to use the rational basis test to do it, and there would not be
any question.
Perhaps the most prized right enumerated in the Constitution is
the first amendment. The Congress shall make no law abridging
the freedom of speech. Those who stretch to find some reason to
oppose your record and have tossed allegations about this right
into their junk heap of criticisms, it seems to me, have not looked
at your record again. Because our legal tradition on the first
amendment places a very high burden on prior restraints or at-
tempts to censure speech.
Now, what are your thoughts with regard to the doctrine against
prior restraints?
Judge BORK. Oh, it is a well-settled doctrine. I think it goes back
to Blackstone or something like that. It is a centuries old doctrine,
and it more recently was upheld in Nehr v. Minnesota, I think by
Chief Justice Hughes. It has been applied in the Pentagon Papers
case and so forth. The doctrine is essential to a free press.
Senator HATCH. Your record on this point, again, is even strong-
er than your words, because you, in fact, decided the case that you
mentioned just a few minute ago with interesting political implica-
tions that included a prior restraint. That was Lebron v. Washing-
ton Metropolitan Area Transit Authority case. In that case, you
said that the Metro Authority violated Mr. Lebron's first amend-
ment rights by refusing to let him post extremely critical posters
about President Reagan in the subway cars.
Now, as a personal matter, did you find the posters in question
belittled and mocked President Reagan and were sometimes offen-
sive and even misleading?
Judge BORK. Well, we found that you could tell what it was. He
had taken two photographsone of President Reagan and his ad-
visers laughing and pointing, and one of some poor peopleand he
put them together so that President Reagan and his advisers ap-
peared to be laughing and pointing at the poor people who were in
misery. It was not misleading in the sense that if you looked at it
you could tell it was not one photograph. Maybe some people would
645
mistake it for one photograph, but if you looked at it with any

care, you could tell it was not one photograph.
But Judge Starr agreed that it was not misleading and, there-
fore, could not be barred. Judge Scalia in this case did not get me
into trouble; he agreed that you could not let an agency impose a
prior restraint. I agreed with both of them. I agreed it was not mis-
leading, really, and also that you could not impose a prior re-
straint.
Senator HATCH. Here is another illustration where you did not
let your personal feelings enter into the decision of a legal question
like that. In my mind, that single case speaks volumes about your
fidelity to the rule of law and the meaning of the first amendment.
One of the criticisms we have heard concerning your first amend-
ment views is that you suggested over 15 years ago that the first
amendment should not cover more than political speech, thus leav-
ing artistic and scientific speech without protection. Now, you have
made it clear that that is not your current opinion; is that right?
Judge BORK. Well, yes. It certainly cannot be confined to political
speech. Where the spectrum ends as a theoretical matter, I do not
know. I have not rethought it. But I would have a much broader
view of it as theoretical matter, but I accept and do not question
the current position of first amendment law.
Senator HATCH. I wish I had the time to go through all of your
cases on this, but let me just mention a few. In the commercial
speech case, in Williamson Tobacco v. FTC, that is where you held
that the first amendment prohibits the FTC from restricting or
giving prior approval to some advertising speech. Your opinion, it
seems to me, made it clear that you would not tolerate even the
slightest degree of censorship. Again, I would say actions speak
louder than words, because you were certainly protecting more
than political speech there, and you oppose censorship.
By the way, my records indicate that Justice Scalia and Judge
Edwards also joined you in that unanimous opinion; is that right?
The CHAIRMAN. Orrin, we are about ten to 12 minute over now,
and we are going to have to break for lunch.
Senator HATCH. Just give me one more minute, then.
The CHAIRMAN. Okay.
Senator HATCH. Let me just go through these cases.
The critics overlooked your opinion governing scientific speech.
In McBride v. Merrill-Dow Inc., you upheld scientific speech in a
libel case. I will just say that much about it.
In the Oilman case, you filed a concurring opinion which dis-
missed a defamation suit against columnists Evans and Novak. Of
course, it would be interesting to describe your reasoning in that
particular case.
You could just go on and on. Let me just bring out a case of
CCNV v. Watt. You joined a dissent in the case concerning the
demonstrators who were camping out in Lafayette Park. That is an
interesting case.
Well, you could go on and on. I think the point I am trying to
say is that even when these involved conservative issues, you ruled
on the side of free speech.
646
Judge BORK. Yes.

Senator HATCH. Time after time after time. So, again, let me just
end with this comment: The thing that really comes home to me as
I read your record, as I read your cases, as I look at what you have
done is that your actions do speak louder than words. As a judge,
you have been right down the line in some of these areas where
they are trying to criticize you, and they are misquoting you and
they are mischaracterizing your decisions and they are ignoring
some of your decisions that really make your case as they try to, I
think, mischaracterize some of your other decisions.
So let me just say this: I hope the American people pay attention
to these hearings because I think you have made a very good case
for yourself. I think you have shown that you are
The CHAIRMAN. I was not laughing at the judge making the case.
I think you are making a very good case, but people are getting
very hungry.
Senator HATCH. That is fine. I am going to make one more
Judge BORK. I must say, Mr. Chairman, I am always hungry for
this kind of talk.
Senator HATCH. YOU are hungry, too.
The CHAIRMAN. Your staff back there are going, When are we
getting back?
Senator HATCH. I can see that I have overstayed my welcome.
You have made a good case for yourself. You have made a good
case for yourself by your actions, and I just submit to the American
people that, by gosh, it is time they look at those actions and they
also scrutinize the criticisms. If they do, they will find that most of
the criticisms that are lodged against you, if not all of them, are
really severely wanting.
Thank you, Mr. Chairman. Thank you for your time.
The CHAIRMAN. Unless you would like to comment, Judge, we
will recess until 2 o'clock.
at 2 p.m., the same day.]
AFTERNOON SESSION
The CHAIRMAN. The hearing will come to order, please. We will
continue with the questioning on half-hour rounds with those Sena-
tors who wish to continue to question. I will continue to withhold
my half-hour. I will probably interject myself in here somewhere
along the line, depending on who is here.
Our next questioner is the Senator from Massachusetts, and then
we will go to Senator Simpson. The Senator from Massachusetts,
Senator Kennedy.
Senator KENNEDY. Thank you very much, Mr. Chairman.
Judge Bork, I know there has been a great deal of discussion al-
ready about your conduct in Watergate when you fired Archibald
Cox, the Watergate special prosecutor. I want to put the facts in
perspective, and then we would welcome an opportunity for you to
respond.
In Nader v. Bork, District Court Judge Gesell ruled that you
broke the law when you fired Mr. Cox. The decision was later va-
cated on other grounds. The question is, what conclusion can we
647
draw from the fact of the decision and the fact that it was later
vacated? You argue that it now has no legal effect at all. It is as
though the judge had never decided that you broke the law. But
the only judge who ever considered the question did conclude that
you broke the law. You can take the opinion out of the law, but
you cannot take it out of the history books, and you cannot even
take it out of the law books.
It seems to me the analogy is a bit like a baseball game. Let us
say a player makes a serious error in the first inning and the offi-
cial scorer rules that he made the error; then in the second inning,
the rains come down and the game is called because of the weath-
er. Under the rules of baseball, the error does not count in the
season statistics for the player, but everybody in the stadium
knows that he has made a serious error.
In Watergate, Mr. Bork, everybody knows that a federal judge
ruled that you broke the law when you fired Archibald Cox during
the very dramatic period in our country's history.
I would welcome whatever comment that you would like to
make.
Judge BORK. Well, Senator, I am afraid that it is not true that
everybody knows that I broke the law. The fact is at worst I acted
before rescinding a regulation put out by the Attorney General for
the Department. Even on that view of the case, Archibald Cox re-
ferred to that as, at most, a technical defect.
But, in addition to that, Senator, the district court relied upon
cases that do not apply; that is, cases in which a department head
issued a regulation and then violated it. In this case, the depart-
ment head issued a regulation, and it was revoked by the President
of the United States when he issued the order. There is no case in-
volving that situation, so I do not think in any sense the very
strong terms, the "broke the law," applies to that case.
Senator KENNEDY. The only judge that ever ruled on itand
there is only one that did rule on ita very respected judge ruled
that you did break the law. I understand your difference with that
judge and the logic of his opinion.
Judge BORK. May I say, in addition, Senator, that I tried to
appeal that case, and the people who had brought the case were
the ones who asked that it be dismissed. And I never got my
chance to review that ruling on appeal, which I very much wanted.
Senator KENNEDY. Well, it became moot, obviously, because Mr.
Cox did not desire to remain in the special prosecutor, so eventual-
ly it became moot. But I think when we had a number of discus-
sions on this issue in question, it was left somewhat up in the air. I
think that it is important that we have some perspective.
You indicated that the only potential rationale for believing that
you broke the law was because of the technical aspects of the law;
that the regulations themselves were not repealed. Do you not
think a Supreme Court nominee must be scrupulous to obey even
the most technical aspects of the law, particularly where the stakes
for the country were so incredibly high?
Judge BORK. The stakes for the country were high but not in the
sense you mean, I think, because from the beginning I was deter-
mined that the investigations would go forward and, if justified,
result in prosecutions. So there was no stake for the country in my
648
discharging Mr. Cox before revoking the regulation. Had I revoked

the regulation, first there would not even have been this discus-
sion. But as I have said before, the President revoked the regula-
tion in his order, and no case holds that he may not do that.
Senator KENNEDY. Well, the letter itself did not actually say that
he revoked the regulations, did it?
Judge BORK. It said abolish the office of special prosecutor.
Senator KENNEDY. We do not want to leave the record to suggest
that he said in his letter that he hereby revoked the regulations.
He said abolish the office.
Judge BORK. He said exactly, Senator, "I direct you to discharge
Mr. Cox immediately and to take all steps necessary to return to
the Department of Justice the functions now being performed by
the Watergate Special Prosecution Force." That is a statement that
"I am telling you to revoke the regulation/' and as a presidential
order, there is no case that says the President may not do that.
Senator KENNEDY. Well, the one judge that ruled on the legality
of that found that it was illegal.
Judge BORK. One judge who ruled on it said so. I respectfully dis-
agree with him, and I think the cases he relied upon are a different
kind of thing altogether. And as I repeat, Mr. Cox himself, who
chose not to sue, said that it was, at mostat mosta technical
defect.
Senator KENNEDY. Judge Bork, you have testified in these hear-
ings that you see no constitutional basis for a number of landmark
decisions by the Supreme Court upholding some of the most funda-
mental rights and liberties of the American people. In the course of
these hearings, you have expressed your strong disagreement with
such decisions as the poll tax case, Harper v. Virginia Board of
Education; the one-man, one-vote, Reynolds v. Sims decision, the
decision invalidating racially restrictive covenants; the decision
striking down segregated schools here in the District of Columbia;
the important decision recognizing that American citizens have a
right to privacy, free from intrusion of government; and key deci-
sions protecting the freedom of speech.
Now, notwithstanding your strong criticisms of these and other
cases, you have asked us to accept your statements that you would
not lightly or easily vote to overturn these precedents. But in a
number of past speeches while you have been a judge, you have
had some less reassuring things to say about your philosophy and
your respect for precedent.
In 1982, you told the National Review, and I quote, "My own phi-
losophy is interpretivist, and I must say that this puts me in a dis-
tinct minority among law professors. By my count, there were in
recent years perhaps 5 interpretivists on the faculty of the 10 best
known law schools, and now the President has put four of them on
courts of appeals. That is why faculty members who do not like
much else about Ronald Reagan regard him as a great reformer."
Did you really believe in 1982 that you were only one of five pro-
fessors in the ten best law schools that saw the light?
Judge BORK. Senator Kennedy, that was an after-dinner speech,
and it was a joke. The full quotation goes something to the effect
that there were five of us and President Reagan has put four of us
on courts. That means that some of my colleagues who do not like
649
much else about President Reagan regard him as a great reformer
of legal education. There was quite a laugh when I said that. It was
a joke.
Senator KENNEDY. Well, we will put the whole statement in, and
I hope members would read it because you list actually the names
of the judges themselves and where they are. It appears to me
much more than just a passing comment.
Judge BORK. Senator, you are referring to the National Review
article?
Senator KENNEDY. Yes. I stand to be corrected. Which has the
judges' names?
The judges' names are not in that speech. They are in a different
speech where you make a similar reference. I would include those.
Judge BORK. In the similar speech, Senator, what I said was that
there were new people coming along who wanted to interpret the
Constitution according to original understanding and I named
them. I did not say there were only five in the world. This in the
National Review came from an after-dinner speech I gave, and that
was a laugh line.
Senator KENNEDY. We will include in the record the other talk
where you did list the ones that you were referring to.
[Speech follows:]
650
ROBERT BORK
Over
THE the Role
STRUGGLE of the
Court
W IIATEVE* ONE THINKS about the performance of
couru lod>, * subject upon which I shall have
nothing to say here, it u quite clear that there have been
is to be invalidated only in cccord with an inference
whose starting point, whose undci'vins premise, is fairly
discoverable in the Countuuon.* Nontuuipretivismor ac-
timct in our history when couru have gone well beyond tivism, if you willadvances "the contrary view, that courts
their proper coiuutuMorul sphere. When that occurs, demo- should go beyond that set of references and enforce norms
cratic government is displaced and the question is how to that cannot be discovered within th; four comers of the
restore a proper allocation of powers Absent a constitu- document~
tional amendment, a general mezns to ensure that courts The noninterprctivisls, in a word, thin* Ihst in litigation
stay within the limits the Constitution provides for them which is nominally const:tuuor.a1 the courts may indeed
can only be intellsctiul and moral. shouldremake the Constitution. These liieotists are usually
That may seem a week control It does not seem so to me careful to say that a judge should not simply enforce his
Intellectual criticism in the short run may be quite ineffec- own values. And they vanausly prescribe as the source of
tive. In the loss ran, ideas v.ilJ be decisive That is partic- this new bw, which is to control th: judi, such things ei
ularly true with respect to couru, more so perhaps than with nctural law, conventional morality, the understanding of an
any other branch of government. ideal democracy, or whit have you.
Couru are part of a more general legal-constitutional cul- There U a curious consistency about these theories. No
ture end ultimately are heavily influenced by ideas that de- matter from which base they start, the professors always end
velop elsewhere in that culture. It is not too much to say, up at the same place, prescribing a constitutional bw uhich
for examp!:, that th: Warren Court was, in a real sense, the is considerably more egalitarian and socially permissive than
culmination of a version of the fefal-realist movement that either the written Constitution or the state of legislative
dominated the Yal: Law School years before. Similarly, opinion in the American public today. That may be the
the outcome of a present debate taking place in the law point of the exercise.
schools will surely affect the courts of today and the fu- My own philosophy H tnlerpretivist. But I must say that
ture. this puu me in a distinct minority among law professors.
A new struggle for intellectual dominance in constitu- Just how much of a minority may be teen by the fact that
tional theory is under way at this moment. The struggle it a visitor to Yale who expressed interest in debating my po-
about the duty of judges with respect to the Constitution. sition was told by one of my colleagues that the position
It is taking place out of puliic sight, in a tens:, because it is was so paste that it would be intellectually tlullifyingMo de-
canted oa almost entirely in the lew schools and in the law bate it.
reviews. But that doesn't meen it won't affect our entire pol- By my count, there were in recent years perhaps five
ity in the yean ahead. Th; ideas lost win hegemony there interprttivtsu on the faculties of the ten betl-knowa law
will cavern the profession, including judges, for at lean a schools. And now the President has put four of them oa
gencrauan acd perhaps more. couru of appeals. That is why faculty members who deal
Let EK sketch the nature of the dcba;c. The contend ins like much else about Ronald Reagan rejard him aa a great
schools of thought are called, somewhst uchippily, 1n- reformer of kgal education.
lerpretivian" erd "nonituerprctivism." ID popular uatg:, If the thtory of nonimtrprwivismthat judges can draw
"imerprethisn* it often called strict construction. And their cocxtitutioael rulings from ojtsidc the document
"tmriutrrpretiviiar it whit we locscly refer to at activism
or icpetialiim.
John Hart Ely. then of Harvard Law School, described Judge Cork, a fo~mr Solicitor Central end the former
them th'.: way: iBterpren'vtsm it the tenet "that judges decid- Alexander M. Biekel Professor of Public Low at Yolt, is
ing cortsUtiHkma) iteucs should cenftoe themf.lves to en- a Judge on lite U.S. Ontn tf Appeals for the District of
forcing norms thet arc Mated or arc dearly iznplieii in Colurtbu Circuit. This article It excerpted from a speech
tbc wristea Constitution. . . . What distinguishes interpre- he gor In H'ashlnfton to the JuJicUJ Reform Conference
tivjaiTor. if yog wiU, strict comtrution"frcm ill op- tprmortd by the Free Congress beseech and Education
posite ie its snsistesce thai the work of the political branches Foyndttto*.
Septemrrr 17. 1912/ NATIONAL Rxvtrw ft

651
achieves entire intellectual hefemony in the Uw schools. quired a wife to coisult her husband before hiving an abor-
as it is on the brink-of doir.r,. ihe results wiU be c'lsastious tion The husband vws given no control over the decision,
for the constitutional Uw of thii nation Judges will (eel jus- merely a ton of dje-fuoccss right to be heard Naturally.
tified in conlirtully crretmj ncv mdr io.Ti:one cbimttJ lhat ever that violated the Constitution.
those influ:mial groups which form h>l rr.i-hi be csllrd The court of appeals said thai it had to balance the wife's
the ConsMUion-r.i.'.k.rj apparatus of nationtlu>l is, right to privacy tgainst the husbands right to procreation
the Uw professors. t!ie couru. the prcu. he leaders of the Neither of those rights is to be found anywhere in the
barwill support the count in doing this It will be very Constitution The court upheld the statute, but the point is
hard to rally public opinioi against groups so arucuUte lhat a court, without ny guidance from the Constitution,
and in control of most of Ihc means of communication It or any source other th*n its own views, had to make an ac-
will be panicuiarlv hard rmce much opposition will be dis- commodation <A values and interests of a sort that used to
armed cy being told thai this a what the Constitution com- be entirely the bi'stpess of the legislature. That will become
mand i We a n a people with a great and justified venera- the general situation if nomnterpretivitm becomes dominant.
tion for the Constitution Another mult of this theory, wh:ch. a< I sa>. is the dom-
The hard fact is, however, that there are no rmdehncs inant theory of the Uw schoolsat least it appears to be win-
outside iSe Constitution ihnt can control a judge once he rung the debate at the momentwill be the nationalization
abandons the Uwyer's task of interpretation. There may be of moral values as stale legislative choices are steadily dis-
a natural law. but we arc not agreed upon what it is, and placed by federal judicial choices. This is directly contrary to
there is no such lew that gives definite answers to a judge the theory of the Constitution, which is that certain moral
trying to decide a case. choice* specified in the document are national, but that un-
There may be a conventional morality in our society, but
on most issues there ere likely to be several moralities. They
are often regionally defined, which is one reason for feder-
alism. The judge hts no wcy of choosing among differing
moralities or corcpeURS moralities except in accordance Eve.y time a court creates a new
with his own morebty. constitutional right or
There mey b: immanent and unrealized ideals of de-
mocracy, but the Constitution does not present* a wholly expands, without warrant,
democratic government. It is difHcuIt lo sse what warrant
a judge has for demanding more democracy than ei'Jxr the
an old one, the constitutional
Constitution requires or the people want. freedom of citizens to
The truth is ttut the judge who looks outride the Con-
stitution always looks inside hiisKlf and nowhere else. control their lives is diminished
Noninlercretivcm, should it prevail, will have several
entirely predictable results. I n the first place, the area of
judicial power win continually grow and the area of demo- less Congress defines a new national consensus, all other
cratic choice will continually contract. We will have r great moral choices are to be made democratically by the people
deal more constitutional law than the Constitution itself con- to their Hates and in their cities.
tains. -Finally, there will occur what I have called the gcntnlica-
Rights win be created, and they will often conflict with lion of the Constitution. The constitutional culturethose
one another, so the courts will find that they must balance who arc most intimately involved with constitutional adju-
them in a process which is indutingiushable from tcguUtion. dication and how it is perceived by the public at large: federal
There is J good example of this. Recently, a federal court judges, law professors, members of the mediais not con-
of appeals had occasion to consider a s u n statute which re- posei of a cross-section of America, cither politically, so-
cially, or morally. If. at I have sugfttted. noninierpretivism
ksxls judge to find constitutional values within himself,
or in the values of those with whom he is most intimately as-
sociated, then the values which mi-Jil loosely be described
as characteristic of the university educated upper middle
class win be those that are imposed.
There is nothing wrong with that class, but there is cJao
oo reason why its values should be imposed upon everybody
else. I f that happens, then the ComtUution will have been
gentriGsd.
Perhaps I've said enough to show why I think this domi-
nant philosophy in the major taw schools must not be al-
lowed to $o enchaticnged intellectually. But I want to make
two last points about the rhetoric o f its adherents.
Noninwrpretivranactivism<s said to be the means by
BalM which courts add to constitutional freedom and never sub-
tract from it. That b wronc- A m o n ; our constitutional free-
l a stsarac B O W today, the C a p t a t Coert fasiswschat doms or rights, dearly given in the text, is the power to
KscsT." govern ourselves democratically.
11S3 NATIONAL RIVBW / Stpttmbtr 17. I9S2

652
Every time a court creates a new coiuuiuuonal right pk who are not coruutut'oiu! theomti and who ms> be tn-
ajiir.tt government or expand*, withort warrsr.l. an old rsrrd at what the court ,ns done These tend to be regirdttl
one. the cciuutulionel freedom of auaru to control their by the constitutional coj-noicrnti as the great unwailrd
live* it diminished. Freedom cannot be creitrd b> thu melh- To them. wt do not mention the ambiguities, the uncertain-
od. it is merely shifted from a larger group la a smalier ties that underlie the dreuion. We ceruinly don't mtnuon
jroup the political U c i for the decision Intlcad, we say to them.
G. K. Chesterton might rave been addressing this very 'Why, you are tuctnj th: Constitution * That, of course,
controversy when he wrote: 'What is the goud of telling a n not what the cntics arc doing
community it hat every liberty except the liberty to make If noninlerprclivism is to be respectable, its scholars must
laws7 The liberty to make laws is what constitutes a free Hop talking this way. When they address the public, they
people" should sa/. frankly, "No. that decision does not come out
rhe claim of noninicrptcuvuu, then, that they will ex- of the wntten or historical Constitution It is based upon a
pand njhts and freedom is false. They i!l merely redistrib-
ute them.
What is perhaps even more troubling is (he lack of can-
dorand I think it can only be called thaiwhich so often
characterizes the public rhetoric of constitutional scholars We do not mention tbe ambiguities
who subscribe to this theory.
Professor Paul Bator of Harvard put the point very wcD
that underlie tbe decision.
at the Federalist Society mectinz at Yale. He explained that We certainly don't mention
there are two different kinds of arguments thai the constitu-
tional in-group uses, depending on its purposes at the mo- tbe political basis for tbe decision.
ment.
On Monday, while we arc arguing for a result in court
Instead, we say, 'Wby, you
that would be hard to justify in terms of the written Consti- are attacking tbe Constitution'
tution, we say things lite: "Oh well, fcny sophisticated lawyer
understands that the text of the Constitution is really not
very deer, its history is often extremely ambiguous, and in moral choice the jadjes made, and here is why it is a good
many areas simply unknown. That being to. why shouldn't ct ?ice, and here is why judges ere entitled to make u for
the court just do good as we define the good?* you."
But on Tuesday, after tht decision has been rmd. we find That last is going to be a little sticky, but that u what
ourselves uliin; 10 a different and much larger group, peo- honesty requires. Until the public understands the baas by
which constitutional argument moves, there will be little
chance for the public to decide whit kind of courts it
really wants.
These concerns arc not new. There is a great deal of dis-
satisfaction with courts today, b is important, in some sense.
to rccognue that those concerns, thai kind of anger is as old
as our Republic. Americans have never been entirely at ease
with the concept of judicial supremacy, and they have also
never wanted to try democracy without any judicial safe-
guards.
Thomas Jefferson spoke feelingly of the dangers of judi-
cial power "The Constitution, on this hypothesis [of judi-
cial supremacy), is a mere thing of wax in the hands of the
judiciary, which they may twist, and shape into any form
they please. It should be remembered, as en axiom of eternal
truth in politics, thai whatever powci in any e^-crnroent is
independent is absolute also. . . . Independence can be trust-
ed oowncre but with the people in mass."
But Alexander Hamilton spoke with equal feeling on the
ncccsscty for aafcgtsanls enforced by independent judges
when he said: "tkare is no liberty if the power of judsing be
not separated from tbe legislative mad executive powers. . . .
The complete indepesdeace of the courts of justice is pecu-
liarly eseentisl in Edited Conttitu:ion."
Both JerTcnoa and Kamirioa had powerful points. It
Mint to me that only a strictly interptctivist approach to
*Hm't EpB b d i t i t ) FHsrin to dag l U r SB cas- the Coctttiutioa. oaly an approach which says the j-jdje
tJe, "Stbj, yen real learn ma mom, vna Cfcmug c u s t must Ett from the Consrisnlkm what is in that document and
had so taanbg* vows, teeae j>oa jpl a faft wfe&i I cacd la in ia history aod nothing eks. can preserve for us the bene-
pay fc sazSto tart ap%, Osfcjr, I atai goaoa * fa fits that Hamilton saw, while avoiding the dangers that Jef-
ferson prophesied. O
Stpitmber 17. I9t2 / NATONAL Rtvnw 1139

653
"The Crisis in Constitutional Theory:

Back to Che Future"
The Philadelphia Society
April 3. 1987
I have been looking at your program and I am impressed.

Any Society that can get through a program billed as
"Constitutional Government: The Design, The Reality, The
Prospect" in one day is an intellectual force to be reckoned
with. The list of speakers can be compared only with the
batting order of the 1927 Yankees. When I read it and realized
I was leading off, I was tempted to bunt just to get on base.
The title of my talk is "The Crisis in Constitutional

Theory: Back to the Future." Anybody who uses the word
"crisis" after dinner had better be prepared to prove that
there is one before he undertakes to rescue you from it. There
are few things more annoying than being rescued gratuitously.
The "crisis" is that constitutional theory, and hence the
future of constitutional law, appear to be at a tipping point.
The American ideal of democracy lives in constant tension with
the American ideal of judicial review under the Constitution.
This tension arises from what has been called the Madisonian
d ilemma.
The United States Constitution creates a Madisonian system,

one that allow* majorities to govern wide and important areas
of life simply because they are majorities, but which also
bold* that individuals have some freedoms that must be xcapt
from majority control. The dilemma is that neither the
majority nor the minority can be trusted to define the proper
spheres of democratic authority and individual liberty. To
Crust Che one is Co court tyranny by the majority. To Crust
Che other is to ensure tyranny by the minority.
It has come to be thought that the resolution of this

dilemma is primarily the function of the judiciary, and
ultimately and most especially, of the Supreme Court.
That is an awesome responsibility and judges require a
strong theory of how to go about discharging it. In Alexander
M. Bickel's words, judges must achieve "a rigorous general
ccocc* kecween judicial supremacy and democratic theory, so
86-974 0 - 8 9 - 2 3
654
that the boundaries of the one [cahl be described with some

precision in terms of the other."
Have we achieved that accord? Most certainly not.
Instead, we have lost what we had. Though occasionally
violated in practice, in the last century and for half of this,
it was unquestioned dogma that judges were to interpret the
Constitution according to the intentions of the men who

O
ratified it. When^Joseph Story discussed the constitutional
role of courts, he stated, as self-evident, there being no
opposing theory, that "The first and fundamental rule in the
interpretation of all instruments is, to construe them
according to the sense of the terms, and the intention of the
parties."
U know from reading their opinions that many of today's
judges do not think themselves bound by original intent, and
now we have judges saying so openly, to the apparent
approbation of the press and certainly of most Law professors.
The professors are quite explicit that the intentions of the
founders are ultimately irrelevant. You will have difficulty,
I think, naming even one full-time professor at a major law
school who writes in favor of original intent. The five
professors who once did have all been appointed to the federal
bench by the present administration. That is why I often say
that, while my colleagues at Yale do not like much else about
Ronald Reagan, they regard him as a great reformer of legal
education.
The central question of constitutional theory is the

legitimacy of power. I will attempt to demonstrate that no
philosophy of judging that is not based on original intent can
confer legitimate power upon the judiciary.
The non-originalist or non-interpretive theorists now

dominate constitutional debate. It is well to understand them
for they attempt to justify what some courts are, in fact,
doing. These theorists contend the judges must create new
rights by pursuing moral philosophy, or sensing the morality of
our society, or reading the words of the Constitution for the
meaning they have to us rather than the meaning they had to the
founders.
655
How can Chat conceivably be justified? The answer comes In

two parts. The first is one of relative institutional
capacities; courts are simply better than legislatures In
dealing with principles of long-run importance as opposed to
immediate problems. Alexander Bickel said: "[Cjourts have
certain capacities for dealing with matters of principle Chat
legislatures and executives do not possess. Judges have, or
should have, the leisure, the training, and the insulation to
follow the ways of the scholar in pursuing the ends of
government."
Professors, apparently, have very romantic notions about

judges' lives. But were we to assume that courts have superior
capacities for dealing with matters of principle, it does not
follow Chat courts have the right to impose more principle upon
us than our elected representatives give us. Governmental
decisions involve a mix of, or a tradeoff between, principle
and expediency. By placing decisions in the legislature, the
Constitution holds that the mix or tradeoff we are entitled to
is what the legislature provides. Courts have no mandate to
impose a different mix merely because they would arrive at a
tradeoff that weighed principle more heavily.
The second step in the argument is that the courts'

commands are not really final and hence not undemocratic, or at
least not fatally so. It is true that an outraged people can,
if iC persists, overturn a Supreme CourC decision. Given Ch
number of decisions to be scrutinized, however. Che political
process would exist in a state of permanent convulsion. As we
know from history, it may take decades to accomplish the
reversal of a single decision. In the meantime, the American
public must live with it. The theory assumes, as one of my
clerks put it, that in the long run none of us will be dead.
What is the point of all this scholarship I use the word

generously devoted to replacing text and history with moral
philosophy in constitutional adjudication? If you look at the
new rights these theorists would create -- rights that lead CO,-
a society far more egalitarian, socially permissive, and
morally relativistic than the one we have or any that the
American electorate wants -- the answer is clear.
656
As John B. McAcChuc put it: "Noninterpretivists at* eager

to discard written systems of law, including that based on the
Constitution, because written law is the barrier between law
and politics. If the judicial process can be reduced to
political choice, then the noninterprevists' views will be
heard along with other views. When text-based methodologies
are rejected, the Constitution, formerly the trump card in the
political debate, can be excluded from discussion."
Why this desperation Co abandon the historical

Constitution? Because the political values of Che
non-originalist professors are far different not only from
chose of Che Constitution but from those of the American
people. Tb crick is to appropriate the veneration we feel
for, and Che obedience we give Co, the actual Constitution for
non-originalisc political resulcs. As HerberC Schlossberg
said, che intellectual class "has found a vehicle for giving
its values the force of law without bothering to Cake over the
political authority of Che state." Judges who behave as Che
non-originaliscs wish upset the Madisonian balance and impose
the tyranny of the minority.
Why should we care what that lowing herd of independent

thinkers, the legal academics, think and write in journals
that, by and large, only they read. Because, as the very
existence of this Society and this program shows, we believe
that ideas have consequences. The teaching of non-originalism
in the law schools means that generations of law students, many
of whom will be coming onto the federal bench in the years
ahead, have been trained to believe that judges may, indeed
should, remake the Constitution. What used to be a shameful
secret, and is now just beginning to be admitted, may one day
be universally and proudly avowed as the judge's duty.
Forty years ago no one could have imagined the extent to
which, in area after area, judges would claim ultimate power
over our lives. If the non-originaiists' teaching has its
intended results, forty years on the nation may be governed by
judges to a degree thaC seems unimaginable today.
657
This debate between originalism and non-originalism, long

hidden in the academic world, is now going public. For Chat we
must thank Justice Brennan and Attorney General Meese, who have
made the question of original intent one of national
discussion. Unfortunately, that discussion is too often guided
by that most venerable maxim of constitutional analysis:
"Magnopere interest cujus bovem confossum esse," or "It makes a
big difference whose ox is gored." (If you don't like the
translation, see my clerk.) It is essential that we keep
bringing the debate back to the basic issue.
The central question in constitutional theory is

said, the legitimacy of power. A judge is unelected,
unaccountable, and unrepresentative, and has no source of
legitimate power other than law. That means that any
intelligible and legitimate theory of constitutional
adjudication must rest on the idea that the Constitution is law
-- not moral philosophy, not the values judges and professors
hold dear -- but law. What does it mean to say that the words
in a document are law? One thing it certainly means is that
the words constrain judgment. They compel the obedience of
judges every bit as much as they compel the obedience of
legislators, executives, and citizens.
Constitutional guarantees not only have contents, they have

contours that set limits. The fact that there are edges to the
Constitution's guarantees means that the judge's legitimate
authority has limits and that outside the designated area*
democratic institutions govern.
There are those in the academic world who deny that the
Constitution is law. A year or two ago I made this argument at
a small conference and an eminent constitutional theorist said
to me: "Your notion that the Constitution is law must rest
upon some obscure philosophical principle with which I am not
familiar." He was intelligent enough to see that if the
Constitution is law, the non-originalists' party is over.
Indeed it is.
If the Constitution is not law, what authorizes a judge CO
set at naught the judgment of the representatives of the
American people? If the Constitution is not law, why is the
658
judge's authority superior to that of the President, Congress,

the armed forces, the departments and agencies, and that of
everyone else in the nation? Why should anybody obey us? No
answer exists.
The only way the Constitution can constrain judges is if

the document is interpreted according to the intentions of
those Who ratified it. That is the way judges deal with all
other forms of law; any other approach makes the judge the
ultimate legislator.
The philosophy of original intention has been parodied as

meaning that judges may apply a constitutional provision only
to circumstances specifically contemplated by the frasters. In
so narrow a fora Che philosophy is useless. Sine* we cannot
know how the framers would vote on specific cases today, in a
very different world from the one they knew, no intentionalist
of any sophistication employs the narrow version just described.
There is a version that is adequate to the task. Dean John

Hart Ely has described it:
What distinguishes interpretivism [or

originalism] from its opposite is its
insistence that the work of the political
branches is to be invalidated only in accord
with an inference whose starting point, whose
underlying premise, is fairly discoverable in
the Constitution. That the complete
inference will not be found there because
the situation is not likely to have been
foreseen -- is generally common ground.
In short, all an intentionalist requires is that the text,

structure, and history of the Constitution provide him not with
a conclusion but with a premise. That premise states a core
value that the framers intended to protect. The intentionalist
judge must then supply the minor premise in order to protect
the constitutional freedom in circumstances the framers could
not foresee. Courts perform this function every day when they
apply a statute, a contract, a will, or, indeed a Supreme Court
opinion to a situation the framers of those documents did not
foresee.
Thus, we are usually able to understand the liberties that

were intended to be protected. We are able to apply the first
amendment's free press clause to the electronic media and to
the changing impact of libel litigation upon all the media; we
659
are able to apply Che fourth amendment's prohibition on

unreasonable searches and seizures to electronic surveillance:
we apply the commerce clause to state regulations of interstate
trucking.
Does this version of intentionalism mean that judges will

invariably decide cases the way the framers would if they were
here today? Of course not. But many cases will be decided
that way and, at the very least, judges will confine themselves
to the principles the framers put into the Constitution.
Entire ranges of problems will be placed off-limits to Judge*,
thus preserving democracy in those areas where the framera
intended it. That is better than any non-intentionalisC theory
can do. If it is not good enough, judicial review under Che
Constitution cannot be legitimate. I think it is good enough.
What are the chances of restoring legitimacy to

constitutional theory? I think they are excellent. My
confidence is largely due to a law of nature I recently
discovered. To future generations this will be known, and
revered, as "Bork's wave theory of law reform." It will be
known and revered, that is, unless some wiseacre develops a
quantum thaory of law reform.
What I have discovered is that courts make law before they

have any adequate theory of what they should be doing. They
are forced by the urgencies of litigation to give answer*
before anyone knows the questions. Matters are made worse by
the legal technique of reasoning by analogy. Only theory can
tell you which characteristics of a situation are relevant so
that you know which situations are analagous for your
purposes. Without a theory, the judge will find false
analogies and move the law in harmful directions.
It is at this point that the first wave of theorists

appears in the law schools. It is their function to shoot the
wounded and make matters worse. They start from the deformed
notions judges have created and extrapolate them. A rich,
erudite, and mindless literature grows up. The courts then
begin to adopt the extrapolations. The future of the law
begins to look extremely bleak.
But eventually, to some people, the fact that the law, an<J
660
its theorises nuke Little sense begins to become apparent. The

result is not only meetings of the Philadelphia Society and
good dinners but a second wave of theory. The second-wave
theorists return to first principles. They ask what the
purpose of the law is, what legitimates the courts' behavior,
and they begin to construct better theories of how courts
should decide cases. Since the second-wave arguments are much
better, they slowly come to dominate the intellectual world,
the new ideas slowly percolate through to the courts, and the
law is on the road to respectability.
These reflections were prompted by the history of antitrust

Law, which in its v of highly general provisions and its open
texture, resembles much of the Constitution. At the beginning,
courts were forced to decide cases for which neither they nor
the economics profession were prepared. Law that, in
retrospect, looks very odd began to grow up, law that was based
on an inadequate understanding of the limits to the judge's
role and on what can only be described as folk economics.
Judicial economics is to economics as judicial writing is to a
sonnet.
It was at this stage that the first wave of antitrust

theorists hit. They wrote books and articles about the
political and social values that should influence antitrust
judges. They wrote books and articles about barriers to entry,
leveraging monopoly power from one market to another, vertical
foreclosure, oligopoly behavior, market failure, and much more,
most of it arrant nonsense. But, in addition to achieving
tenure and consulting fees, these theorists encouraged the
courts to even greater policy fiascos. The law came to
suppress as much competition a it preserved.
Then the second wave began to gather. This is not the time
to tell the story of what has been called the Chicago school of
antitrust. I need, only say that a thoughtful and intensely
rigorous economist, Aaron Director, was invited into Edward
Levi's antitrust course. He began to question, and to train a
few interested students to question, the shibboleths of
antitrust. This was the germ not only of antitrust reform but
of the law and economics movement.
661
When I first started at Yale I thought the situation of the

law was hopeless, chat the intellectual content of antitrust
was corrupt beyond redemption and would be kept that way by
political forces hostile to the free market. That accounts for
the tone of much of my early writing sarcastic and
confrontational. I thought if you couldn't win, at least you
could cause pain on the way out.
The fact is I underestimated the power of ideas. That is a

very natural error for a professor. If you sit in enough
faculty meetings, you are very likely to underestimate the
power of thought.
But the second wave Director's students started grew and

achieved a theory of the goal of antitrust based on separation
of powers concepts, and new, much more plausible views of
business behavior and the law's proper role in the market.
Scholarship was gradually transformed and so widely has its
influence spread that it became possible for people like Bill
Baxter, Jim Miller, and Dan Oliver to be appointed to head the
Antitrust Division and the Federal Trade Commission and to
survive politically in a way that would have been impossible
even ten years previously. The battles are not over yet and I
am far from claiming that the economic phenomena of the market
are fully understood. But matters are immeasurably improved
and antitrust has been recaptured for a free market rather than
an interventionist, statist philosophy.
I suggest to you that we are witnessing the beginning of

the second wave in constitutional theory. The courts addressed
what they regarded as social problems after World War II and
often did so without regard to any recognizable theory of
constitutional interpretation. A tradition of looking to
original intention was shattered. Constitutional theorists
from the academies, in sympathy with the courts politically,
began to construct theories to justify what was happening. So
was non-originalism born. That wave has become a tsunami and
its intellectual and moral excesses are breathtaking. Like the
first-wave theorists of antitrust, these theorists exhort the
courts to unprecedented imperialistic adventures.
662
But the second wave is rising. When I first wrote on
original intent in 1971 one of my colleagues at Yale told a

young visiting professor not to bother with it because the
position was utterly passe. And so, indeed it was. But it was
more than passe; it was, I think, the future as well. On that
side of the issue there are now, to name but a few. Judges
Ralph Winter and Frank Easterbrook, Professor Henry Monaghan,
and former professor, now Chief Justice of the High Court of
American Samoa, Grover Rees. There are many more younger
people, often associated with the Federalist Society, who are
of that philosophy and who plan to go into law teaching. It
may take ten years, it may take twenty years, for the second
.wave to crest, but crest it will and it will sweep the elegant,
erudite, pretentious, and toxic detritus of non-originalIsm out
to sea.
The struggle for possession of antitrust was crucial,

because antitrust's ideas and symbolism go to the heart of
capitalist, free-market ideology.
The intellectual struggle for possession of the ideas and
symbolism of the Constitution is equally, or more, crucial, for
constitutional theory goes to the heart of the American
ideology of balanced democratic order and individual freedom.
We have come a long way into scholarly intellectual

corruption and judicial imperialism. We have come a long way
from the founders' vision of a Madisonian system. But we are
going back to the future. Constitutional theory will return to
Story's assumptions about original intent. But now we go back
with a far more sophisticated, and hence a stronger and more
durable, philosophy. That is the one, and the only, blessing
for which we must thank our friends, the non-originalists.
663
Senator KENNEDY. Let me just continue. Next, you told us in

these hearings that your views are changing in a number of contro-
versial areas, but you told the "District Lawyer" in 1985 when you
were a judge, and I quote,
It is always embarrassing to sit here and say, no, I have not changed anything,
because I suppose one should always claim growth. But the fact is, no, my views
have remained about what they were. After all, courts are not that mysterious, and
if you deal with them enough and teach their opinions enough, you are likely to
know a great deal. So when you become a judge, I do not think your viewpoint is
likely to change greatly.
Then you told the Federalist Society in 1987, and I quote,
An originalist judge would have no problem whatever in overruling a non-origina-
list precedent because that precedent, by the very basis of his judicial philosophy
has no legitimacy.
Finally, Mr. Bork, there is an audio tape of remarks which you
made at Canisius College in Buffalo on October 8, 1985. With the
Chairman's permission, I would like to have the committee hear an
excerpt from the tape which contains your answer to a question
about your views on your respect for precedent. We have heard you
testify about your position on this issue in these hearings, and I
think it would be helpful to the committee to hear the actual
manner in which you commented on the issue in 1985.
First, we will hear the question and then we will hear from Mr.
Bork.
The CHAIRMAN. Let me ask this. Judge Bork, yesterday I gave
you a transcript of a speech. I assume it is the same.
Senator KENNEDY. Yes.
The CHAIRMAN. If there is no objection, then
Judge BORK. May I ask what the first piece you referred to was?
You referred to the 1987 Federalist Society, Senator, and then you
referred to a Canisius College question?
Senator KENNEDY. This is a question and answer.
Judge BORK. But what was the first thing you referred to before
that? I think there was some writing.
Senator KENNEDY. "District Lawyer."
Judge BORK. "District Lawyer."
Senator KENNEDY. If we could hear the question.
[Audio tape played.]
Question. If I can follow that up. Now, the relationship between the judge, the
text, and precedent, what do you do about precedent?
"Mr. Bork. I don't think that in the field, of constitutional law, precedent is all
that important. And I say that for two reasons. One is historical and traditional.
The Court has never thought constitutional precedent was all that importantthe
reason being that if you construe a statute incorrectly, the Congress can pass a law
and correct you. If you construe the Constitution incorrectly, Congress is helpless.
Everybody is helpless. You're the final word. And if you become convinced that a
prior court has misread the Constitution, I think it's your duty to go back and cor-
rect 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 Constitu-
tion. 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 and fur-
ther 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 prece-
dent. 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.
664
Senator KENNEDY. Judge Bork, in light of what we have just
heard, how can anyone have confidence that you will respect the
decisions of the Supreme Court with which you disagree?
Judge BORK. Well, I will tell you why, Senator. Let me go down
the items you have mentioned. I will address that specifically and
at some length because it is a difficulty. Let me start down the
items you mentioned.
You mentioned the "District Lawyer," an answer about where I
said it is embarrassing to sit here and say I have not changed. The
question was, "Has your view of the possible usurpation of political
functions by courts changed since you ascended to the bench?" Not
all my views; my views about courts taking over areas that belong
to the legislature.
And I said,
It is always embarrassing to sit here and say, no, I have not changed anything
because I suppose one should always claim growth. But the fact is, no, my views
have remained about where they were. After all, courts are not all that mysterious,
and if you deal with them enough and teach their opinions enough, you are likely to
know a great deal.
The CHAIRMAN. If the Senator will yield and Judge, because we
have been over this several times. You made a distinction at the
outset of your answer. Would you repeat the distinction you were
making about what you were referring to, so I understand it?
Judge BORK. All right. The question was,
Before you ascended to the bench, and indeed, in lectures and writings even since
that time, you have been among the people who have challenged the role of what
you and they have called the "imperial judiciary." Has your view of the possible
usurpation of political functions by courts changed since you ascended to the bench,
either become stronger or perhaps more diffuse?
And I said no, my view of courts taking over political functions
had not changed.
The CHAIRMAN. SO the answer relates to courts taking over polit-
ical functions?
Judge BORK. That is right. It does not relate to all other views of
mine. In no way am I saying I have not changed any view of mine.
Just that one aspect.
The CHAIRMAN. One more thing. What did you mean and what
do you think they meant by "political functions"?
Judge BORK. I think I meant and I think they meant functions
that belonged to the legislature under the Constitution. And I said
no, my viewthat that is not properhave not changed.
Judge BORK. NOW, in the Federalist Society speech, you have the
original notes there, Senator. I do not know if you do, but the com-
mittee has them. I had some typed remarks, not much but a few,
and somebody before me spoke and I scribbled in the margin about
an originalist judge, et cetera, need not worry or something about
overruling a non-originalist decision because a non-originalist deci-
sion has no legitimacy. In the next paragraph, which was the typed
part of my speech, I then gave an example of non-originalist deci-
sions that should not be overruled.
That was a commerce clause decision, not in conformity with the
original intent of those who drafted the commerce clause, but that
clause has been expanded so much it cannot be cut back and I said
665
that in the next paragraph, so I was certainly not saying you could
overrule anything. Now, as to this tape you just played, Senator,
generally what I said there is correct and the reason for it is this
and it is the reason that every judge has given.
If there is an incorrect constitutional interpretation, the legisla-
ture cannot change it. The political forces of the nation are help-
less unless they can amend the Constitution. If there is an incor-
rect interpretation of a statute, the legislature can correct it. That
is why it has always been true that the doctrine of stare decisis or
a doctrine of precedent has always applied more severely in statu-
tory fields than in the constitutional field.
I learned that in my first year in law school in a course taught
by Edward Levi, who had just written an article in a book called
"Introduction to Legal Reasoning" in which he points out that the
Court has always felt that way. Now, that is a perfectly standard
view.
The CHAIRMAN. Again, for clarification, Judge, again I apologize
for being slow on this. The distinction again being a constitutional
decision based upon statutory interpretation?
Judge BORK. No, no, the distinction has always been that courts
are more respectful of precedent in statutory fields than they are
in constitutional fields.
The CHAIRMAN. Give us an example of each so we all know what
you are talking about.
Judge BORK. Well, to get a constitutional decision such as in a
case we have talked about. The court decided Plessy v. Ferguson,
establishing the rule of separate but equal for the races, in about
1896, I believe. The Congress could do nothing about that, really.
The CHAIRMAN. That was constitutional versus statutory?
Judge BORK. That was a constitutional decision.
The CHAIRMAN. That is all I am trying to make sure of.
Judge BORK. Yes. The Congress could do nothing about that.
The CHAIRMAN. I understand that.
Judge BORK. And the Court overruled it in Brown v. Board of
Education. Now, this is a standard view. For example, I will show
you Justice Brandeis. He is talking about stare decisis is not a uni-
versal, inexorable command. In most matters, he says however, it
is more important that the applicable rule of law be settled than
that it be settled right.
Then he says, and this is from a case, Burnett v. Colorado Oil
and Gas:
This is true, even where the error is a matter of serious concern, provided correc-
tion can be had by legislation, but in cases involving the Federal Constitution,
where correction through legislative action is practically impossible, this Court has
often overruled its earlier decision. The Court bows to the lessons of experience and
the force of better reasoning, recognizing that the process of trial and error, so fruit-
ful in the physical sciences, is appropriate also in the judicial function.
Then, just one more quotation. Justice William O. Douglas said
in a case:
The judge remembers above all else that it is the Constitution which he swore to
support and defend, not the gloss which his predecessors may have put on it. So he
comes to formulate his own views, rejecting some earlier ones as false and embrac-
ing others. He cannot do otherwise unless he lets men, long dead and unaware of
the problems of the age in which he lives, do his thinking for him.
666
Now, those quotations are no stronger than what I said, but what
I said, Senator, it is to be remembered, was in a give and take,
question and answer session after a speech. It was a quick answer.
It was not a prepared statement. Now you have other speeches and
interviews of mine, in the past, and I have stated the matter more
fully.
And in the same year as that speech, in the "District Lawyer"
interview, I saidit is the same year as the speech which you
playedthere are some constitutional decisions around which so
many other institutions and people have built, that they have
become a part of the structure of the Nation. They ought not to be
overturned, even if thought to be wrong.
The example I usually give, because I think it is a non-controver-
sial, is the broad interpretation of the commerce power by the
courts. So many statutes, regulations, governmental institutions,
private expectations and so forth, have been built up around that
broad interpretation of the commerce clause that it would too late,
even if a justice or a judge became certain that broad interpreta-
tion is wrong, as a matter of original intent, it is too late to over-
turn it and tear it up.
I said the same thing in the "Federal Society" speech to which
you have referred so that aside from a quick answer at a college
one night after a speech, I have been fully consistent, in these
hearings, with what I have said before and I have told you the
same thing about the commerce clause, the legal tender cases, the
equal protection clause, in the first amendment and so forth, that I
have told you about that precedent.
Senator KENNEDY. I just mention here, to continue on, the next
question in the "District Lawyer" article about the subject of pru-
dential restraint, where people have relied on precedents. You
were asked whether "your view would be that a justice is entitled,
as part of his responsibilities, to re-examine a constitutional ques-
tion de novo?"Your answer was "I think that is true of a justice
and true of a lower court judge unless he is bound by Supreme
Court precedent. After all, there are a lot of considerations that go
into it. But at bottom, a judge's basic obligation or basic duty is to
the Constitution, not simply to precedent."
Now, in the course of these hearings, on Tuesday, in evaluating
precedentincluded that in the recordyou pointed out that we
should make sure the decision was incorrectly decided and then de-
termine whether governmental and private institutions have
grown up around that prior decision.
In the Canisius College speech, you made the unqualified state-
ment,
I don't think that in the field of constitutional law, precedent is all that impor-
tant and if you become convinced that a prior court has mis-read the Constitution, I
think it's your duty to go back and correct it. I don't think a precedent is all that
important.
Those statements speak for themselves. Your own words cast
strong doubt upon your adherence to precedent that you think is
wrong.
Judge BORK. Senator, you and I both know that it is possible, in
a give and take question and answer period, not to give a full and
measured response. You and I both know that when I have given a
667
full and measured response, I have repeatedly said there are some
things that are too settled to be overturned. The Canisius College
thing was not my speech. That was a bunch of students questioning
me afterwards.
It is not the kind of thing that ought to be weighed against my
more considered statements when I am not just engaging in give
and take. We all make statements that are not fully balanced in a
give and take. You mentioned something from the "District
Lawyer" which I, at the moment, cannot find.
Senator KENNEDY. It is the next question down after the last one.
The only point I want to make, Judge, is that I think it is impor-
tant to understand that this is not just an off-handed legal ques-
tion. The question of judicial restraint has been something that you
must have been thinking about for years. I for one would not
accept the concept that a person that has been teaching, a profes-
sor, who has been dealing with these issues for a long period of
time, that this is just an off-handed comment about legal theorem.
You have been thinking about it. You have worked at it. It is
your life. You made the statements and we have read a series of
statements, rather than just this one, and this body has had an
opportunity to listen to your voice and how you characterize that. It
seems to me that your series of statements make an extremely
convincing case as to what your real beliefs are with regard to
precedent, and that is going to have to stand.
We have your other testimony and people are going to have to
evaluate that against what you have said as a judge. A great deal,
in the course of these hearings, has been madelet's not go back
over the old years; let's go and consider what he has said as a
judge. We have used these examples, a series of statements that all
reinforce themselves.
The fact remains, you were sitting as a federal judge at this very
time of the Canisius remarks. I think that federal judges are ex-
pected to understand, or be able to give a pretty good definition, of
how they are going to respond to precedent.
Judge BORK. The only aspect that I addressed in that question,
Senator, the only aspect that I addressed was the distinction be-
tween the theory of precedent or stare decisis in a constitutional
context and a statutory context. That is the only time you can say I
did not go on to say something more. In the Federalist Society
speech, which you quoted, I did, in the next paragraph, say of
course, there are some decisions that are so rooted you cannot turn
them over.
In "The District Lawyer"in which I still have not found what I
saidbut you quoted me as saying at bottom, the judge's obligation
is to the Constitution, which is, of course, true. But right before
that, I said a lot of considerations go into whether to overturn or
not, which is what I have said here. So with a single exception, I
think, of one after-speech question and answer session, I have con-
sistently said what I have said here.
Senator KENNEDY. Well, I think the record will speak for itself. I
have no further questions of the nominee. I would like to just use
the remaining 2 or 3 minutes for a comment. I think Mr. Bork has
claimed that he is only applying neutral principles, but there is
something wrong with neutral principles if the result is that Con-
668
gress and the courts must be neutral in the face of discrimination
because of race, they must be neutral in the face of discrimination
against women and in the face of gross invasions by the Govern-
ment of individual citizen's rights to privacy.
Above all, a Supreme Court Justice must be fair, but in life-time
of writings on the public record, Mr. Bork has shown his bias
against women and minorities and in favor of big business and
Presidential power. It is small comfort to minorities to know that
some years after the Civil Rights Act was passed over his opposi-
tion, Mr. Bork changed his mind and said that it had worked all
right. But if you had had your way, Mr. Bork, no one would ever
have known how the Civil Rights Act would work.
Mr. Bork is against the one man, one vote decision of the Su-
preme Court, which says that everyone's vote should count equally
and the same. He would allow majorities to write laws that give
greater weight to some people's vote than others and that is the
very opposite of democracy. Mr. Bork asks us to judge him on his
record, as a judge, but in his own speeches, as a judge, he has
shown little respect for past decisions of the Supreme Court.
Again and again on the public record, he has suggested that he is
prepared to roll back the clock, return to more troubled times,
uproot decades of settled law in order to write his own ideology
into law. And in these hearings this week, he has asked us to be-
lieve that he can make a U-turn in these areas of fundamental im-
portance. The question all of us are asking is who is the real
Robert Bork and what risks are we taking for the future if he be-
comes a Justice of the Supreme Court with the last word about jus-
tice in America.
The White House strategy, in these proceedings, has been clear.
Mr. Bork's balloon was losing altitude in the Senate, and he has
been rapidly jettisoning the baggage of a lifetime in opposition to
individual liberty and equal justice. President Reagan has failed to
achieve his ideological agenda in Congress and is not entitled to
achieve it by an ideological nomination to the Supreme Court that
could reverse the progress of the past and tilt the country far
beyond the end of his term.
America is ready to move forward with the Supreme Court, not
backward. But Mr. Bork is out of step with the Congress, out of
step with the country, out of step with the Constitution and many
of the most fundamental issues facing America. Mr. Bork is a walk-
ing constitutional amendment and he should not be confirmed by
the Senate.
Judge BORK. Senator, if those charges were not so serious, the
discrepancy between the evidence and what you say would be
highly amusing. I have not asked that either the Congress nor the
courts be neutral in the face of racial discrimination. I have upheld
the laws that outlaw racial discrimination. I have consistently sup-
ported Brown v. Board of Education in my writings long ago. I
have never written a word hostile to women.
I have never written a word hostile to privacy. I have complained
about the reasoning of one Supreme Court case. I have never writ-
ten a word or made a decision from which you can infer that I am
pro-big business at the expense of other people. And as far as Presi-
dential power is concerned, I have very rarely dealt with that, but
669
when I have, it is on constitutional principles and upon occasion, as
in the pocket veto matter, you will find me squarely opposing Pres-
idential power.
I have no ideological agenda and if I did, it would not do me any
good because nobody else on the Court has an ideological agenda
and I do not intend, if confirmed, to be the only person up there,
running around with a political agenda. In fact, nothing in my
record suggests I have a political or ideological agenda.
Senator KENNEDY. Well, Mr. Chairman, I think my time is ex-
pired and I think the record speaks for itself. We have had an op-
portunity to review those items in previous questioning and the
members will have to make their own judgment.
Judge BORK. I agree with that, Senator Kennedy.
The CHAIRMAN. The Senator from Wyoming.
Senator SIMPSON. Thank you, Mr. Chairman. Mr. Chairman, I
have shared with you that I practiced law for 18 years and have
legislated for 24 and I have enjoyed that thoroughly. In these last 4
days, I have become totally convinced of what I thought was inad-
equacy, but has actually proven to be a great, remarkable asset. I
never wrote any books. I wrote a lot of briefs. There are no written
speeches of Al Simpson. I knew I was on the right track years ago.
The CHAIRMAN. I think you will find a bunch of them are taped,
Al. I am finding that out right now. [Laughter.]
And not all of them turn out to be mine either. [Laughter and
applause.]
Senator SIMPSON. Well, next question please. That is typical of
your grace in this situation and like you and I like that. You need
that. Keep your humor, it sure throws the rest of them off. They do
not know what the hell to do with it. But, I never wrote any stuff. I
worked hard and I worked hard to be a great lawyer and I work
hard to be a great legislator or statesman. I work hard because I do
not like to make an ass out of myself. There really is nothing else
in it for me.
And when you said this morningit was very movingwhen you
said something to the effectand it was just two or three words, so
I must be pretty close to itthat you did not want to go down in
history or to be disgraced in history, that you have said and stated
your position absolutely clearly and if anyone could believe that
you are going to go on the Supreme Court and not do it all differ-
ently, you would be disgraced in history. Isn't that what you said?
Judge BORK. I did indeed. I should make an additional point. I
also took an oath, when I came in before this committee, to tell the
truth and I take an oath very seriously and that is what I have
done is told the truth.
Senator SIMPSON. Well, I think that is something for people to
hear very clearly. Indeed, you did take an oath and you take that
oath very seriously and you have a belief in a higher being and
that is what makes the oath worth taking. That is how that works.
That ain't corny. That is the way that is.
But again, back to writings. It was curious to me and it has been
like a law school seminar in some situations to hear you and my
fine friend from Pennsylvania discussing certain areas of the law
in a highly honed way. For me to listen to this is educational and
very fascinating how you get into it and both can bat it around
670
and others. And Senator Metzenbaum with his antitrust. Having

never written a bookthis fellow said he had written in the area
of probatehe wrote a very provocative book called "The Role of
the Decedent in Estate Planning." I could have written a book like
that and I thought that that is the only title I could have probably
gotten away with.
But, I had an awful lot of fun practicing law in a profession that
I dearly loved and I wrote some awfully stupid letters. People still
bring them to my attention. I tried some really goofy cases, losers,
total losers. In pro bonowe really did not get going on pro bono
until I was about 3 or 4 years into the practice, about 1963. Some-
body said, you know, we ought to do some pro bono. We said, well
we will so the Park County Bar Association said we will do, you
know, blank hours a month, each of us and check the book.
I do not know how many lawyers did it that way. We did. We
thought we were pro bono automatically. We were charging 10
bucks an hour for our work. So, pro bono was not what it is now.
That again is kind of what this whole thing is about. We are
judging you on the basis of September 18th, 1987, when they forget
everything that was swirling around in 1964 and 1971 and 1980,
whenever. That's, I think, total distortion.
Back to that extraordinary case, the "illegal" case, that you did
something illegal. Well, I tell you, I used to use Black's law diction-
ary only when I was in extremity. The word "vacate" in Black's
law dictionary says "To amend, to set aside, to cancel, or rescind;
to render an act void; to vacate an entry of record or judgment." It
is not synonymous with "suspend," which means to stay enforce-
ment of judgment or decreeto put an end to.
I hope we can put an end to what must be another goofy case
where the party that won didn't want to go any further with it.
Now, you don't have to be a real wizard to know that must be a
real turkey. And it was vacated. And that ought to be the end of
that, surely.
So I guess what we, who support your nominationI guess we
kind of come out and say, ah, that's crazy, how can that be? But,
obviously, that isn't enough, because those on the other side say
highly dramatic things: you have shocked my senses, you have left
me limp, I cannot believe what I have read, you have stunned me.
Well, I tell you, why wouldn't someone in America be alarmed to
see the distortion of your record. How would anyone not, any sensi-
ble American not be disturbed if they read your record? The word
"poll tax" is immediately equated with racism. I think we all ought
to get awfully tired of that; that case had nothing to do with
racism, nothing. The words "poll tax" have a marvelous connota-
tionno, a hideous connotation of racism. And you would have
trashed it in a minute, would you have not, if it had anything to do
with racism?
Judge BORK. Of course, the basis of my discussion of that case
was that it had nothing to do with racism and therefore it was a
little hard to follow some of the reasoning. I should sayI've just
been handed the opinion in that case, Senator, and Justice Hugo
Black dissented from that ruling that the poll tax was automatical-
ly unconstitutional, even when there was no racism. And in his dis-
sent, he said:
671
"It should be pointed out at once that the Court's decision is to no extent based on
a finding that the Virginia law, as written or as applied, is being used as a device or
a mechanism to deny Negro citizens of Virginia the right to vote on account of their
color. Apparently the Court agrees with the district court below, and with my broth-
ers Harlan and Stewart, that this record would not support any finding that the
Virginia poll tax law the Court invalidates has any such effect.
That is, any such discriminatory effect. Hugo Black said that
very plainly, and, indeed, the Court did not claim that there was
any racial animus in that poll tax.
Senator SIMPSON. Yet that has been presented day after day,
hour after hour, on the hourin fact, they all are presented on the
hour, or on the half hourthe same ones; and they always have
the charged word "anti-black," "racist," "sterilization of your
fellow human beings," "contraceptives," "homosexuality/' "sexual
preference," "women's rights." You know, really, what a bizarre
exercise. It must be something for you to observeand you are ob-
serving it, you are living it.
How do you feel about it all?
Judge BORK. Senator, I have not yet had time to gather my
thoughts on the entire matter. Let me say that it is not terribly
enjoyable.
Senator SIMPSON. NO, I think not, but I think it will be concluded
shortly. And it's been a very fair hearingand a good one, and you
like it somewhere down in there.
Judge BORK. Oh, Senator, I love it. [Laughter]
Senator SIMPSON. All right, now, several Senators have gone
through the list of your actions and views and cases and amicus
briefs, and the full-page newspaper ads have continued in harsh
and hysterical tones, and repeated and supplemented your,
"record", which is really so grossly distorted, from prior writings
and speeches. And, you know, when I ask who these groups are, I
never really can find out; it's really getting to be a phantom kind
of a networking operation nowthey are running out of gas, or
money, and nobody really takes any responsibility. I wasn't going
to use the word "credit"that would be a disservice.
But other items in these listings and in these advertisings are
not only unfair, in my mindand in some cases outrageous; they
are dishonestI will use that termand they are liesI will even
use that term, because that's more perfunctory and more real, and
one that I'd love to stick with: lies. And those are words that
people know, words like "lie."
Going over this list that we have heard this morningand I've
had my list over the last 3 dayson what you have done on the
court, which are not anything more than things of the record,
which are precise and irrefutable; they are in the statutes, in the
law books. So when we get to what is the point, what kind of a Jus-
tice will this man be as a Supreme Court judge, it is quite helpful
to see what he was as an appellate judge. And I am not going to go
through the cases that have already been reported about female
Foreign Service officers entitled to the same pay as similarly em-
ployed male officersyou did that; holding that intentional sex dis-
crimination can be inferred solely on statistical evidencea mar-
velous pro-civil rights decision; female stewardesses may not be
paid less than male pursers with similar jobs; two cases on title 7,
672
which were liberally construed, which in effect kept the courthouse
door open for aggrieved people who claimed employment discrimi-
nationthat hasn't been quoted before, and that's Nordell v. Heck-
ler and Tyrell v. U.S. Postal Serviceyou kept the door open, other
people were trying to shut it on blacks and others; the senior mili-
tary officers case and the promotion decision on the black officer
you did that, you opened that door for him; the South Carolina
vote where there was an at-large election without first proving that
the change would have no discriminatory effect against blacks
you did that, you opened that door, that isn't something you talk
about on a podium or sing aboutyou did it. That's not the view of
a judge who is hostile to women and minorities; it sounds to me
like a very compassionate man.
I hope the people of America are seeing that in you, a judge who
has expanded civil rights during every bit of his writings and deci-
sions instead of pinching it down and shutting it off. The earlier
Robert Bork, you know, who wrote all those provocative law review
articleswell, that's you, too. Theory, I read that yesterday what
you said about as you opened and prefaced those remarks in that
law review article, and how you ended it.
What was interesting to me was that when you were Solicitor
General you filed several briefs supporting the rights of minorities
and rights of women when you didn't even have to, didn't you?
Judge BORK. True.
Senator SIMPSON. Why did you do that?
Judge BORK. It seemed to me that it was in accordance with the
law.
Senator SIMPSON. Was it in accordance with your belief that mi-
norities needed protection? Was it in accordance with that, too?
Judge BORK. Yes, it is, Senator, but I should say that if the law
isn't there, my beliefs aren't going to influence what I dothe law
has to be there.
Senator SIMPSON. That's pretty clear. You get a lot of flak on
that, but that's what the system is supposed to be all about.
So then you filed an amicus brief urging and arguing that single-
sex schools are unconstitutional and illegalthat was a Philadel-
phia case. You filed these because you felt it was the right thing to
do under the law. We've all heard several timesand yet it keeps
coming back up when they talk about you as being a racist, that
you alone took a pretty firm stand in your original law firm and
stopped the prejudice against a Jewish lawyer in the firm.
Then you filed another briefand you mentioned on your first
day, Section 1981, which is an old statuteI don't remember the
date of it, but I know if we had ever put the right English on the
cue ball on that one years ago we could have saved a lot of time in
the civil rights laws, wouldn't you agree?
Judge BORK. That's entirely true.
Senator SIMPSON. YOU bet. So 1981, Section 1981, is a most impor-
tant civil rights statute. And you filed a brief which said it was the
most important one prior to the Civil Rights Act of 1964.
Judge BORK. I didn't say it prior to 1964, that's right; I said the
statute was the most important one before the 1964 one.
Senator SIMPSON. When applied to racially discriminatory pri-
vate contracts.
673
Well, Gordon Humphrey has reviewed some of those, Orrin
Hatch has reviewed some of those.
You filed another amicus brief, successfully arguing the 14th
amendment gave Congress the complete power to remedy State or
local violations of the amendment. Now, that one decision right
there is probably the most critical one of getting things done under
the civil rights law, is that not correct?
Senator SIMPSON. That one has escaped people, apparentlyFitz-
patrick v. Bitzer. That was absolutely essential to the federal elimi-
nation of racial discrimination, is that not true?
Judge BORK. I guess so. Senator, I don't have thatI'm afraid I
filed so many briefs in my time
Senator SIMPSON. I'm sure that's true. But, in any event, it was
essentialand you did that. Then you represented the position of
unionsyou went through those other cases. And no one has really
presented any honest evidence of you doing these heinous things in
this country, and that reallywell, that galls meI'm not going to
ask you what it does with you. Because I believe in fairness. You
know, you can play this game of politicsand I love it, I can bat
around in it, chew up in it, snarl, and then go off and have a light
glass of ale with some guys who I vote with 5 percent of the time
but that's fun for me, because that's the way I practiced law.
So to hear these things said about youthe best and most attrac-
tive phrase, it just seems wierd, absolutely wierd, to hear that
when the cases are there. I think it shows how much we are talk-
ing past each other with regard to you. I hope we are somewhere
listening in this process and that our colleagues on the floor will be
listening, because it would be a great disservice to talk past each
other as regards you. And if it's not being heard, that would be
indeed too bad. And if that happens and goes on, they will not
know about you.
I was interested again in that issue of precedent and overruling
and so on. I don't know how you can get any more clear than
thatI really don'tbecause in the same article that is being used
to drum you about the head and shoulders, this "District Lawyer"
articleyou said it all in there, that, you know, if things had been
built up, regulations and governmental institutions and private ex-
pectations had been built up around that, it's too late, even if a jus-
tice or judge became certain that broad interpretation is wrong in
the matter of original intent, to tear it up and overturn it. That's
what you said. And then at the end of that article you said "If the
Justices have become convinced that a decision cannot be squared
with the Constitution, they ought to consider overruling it. But the
Court should be careful"these are your words"If a particular
decision has become the basis for a large array of social and eco-
nomic institutions, overruling it could be disastrous." You said
that, didn't you?
Judge BORK. Yes, I certainly did.
Senator SIMPSON. In the same article that was referred to mo-
ments agoI believe; maybe it was a different one, but it was cer-
tainly from the "District Lawyer."
Judge BORK. That's the same articlesame interview.
Senator SIMPSON. Here's a statement, call it "Guess Who" time.
674
He is a dangerous radical. The general opinion is that he is a very able lawyer, a
man of keen intellect, but that, as a matter of intellectual honesty, he is not entire-
ly trustworthy. He will distort the Court's decisions for generations; he will take his
seat equipped with a variety of preconceived notions and firmly held opinions relat-
ing only remotely, if at all, to the questions of law, but rather to the questions of a
purely political nature concerning social issues.
Now, that was a comment about Justice Louis Brandeis. The
year was 1916.
Did you think he panned out all right?
Judge BORK. I certainly did.
Senator SIMPSON. In the end?
Judge BORK. I certainly did. He's become one of the giants of the
Court.
Senator SIMPSON. He made the grade.
Senator SIMPSON. He is not disgraced in history, is he?
Judge BORK. Certainly not, certainly not. The names of Holmes
and Brandeis, I suppose, will live as long as our jurisprudence does.
Senator SIMPSON. Well, they will be to all of us who love the law
and practiced it and to the people who it affectsand that's every-
body else. That was a comment about Justice Brandeis.
How about this one? "He has a record of continued hostility to
the law, of continual war on the Constitution. He has already
taken sides with the executive branch. He would be but their
echo." The National Organization of Women warned that if he
were confirmed, "justice for women would be ignored or further de-
layed, which means justice denied."
That is a comment about Lewis Powell. What do you think of
that one?
Judge BORK. They appear to have missed the mark rather sub-
stantially.
Senator SIMPSON. I think so. One moreand a final one.
We opposed his confirmation not solely because of his consistent opposition to
women's rights, but, more importantly, because he has demonstrated that his legal
opinions on women's issues are based on an apparent personal philosophy and not
on the facts and laws and cases before him. Thus he lacks the fairness and the im-
partiality requisite for appointment to the Supreme Court of the United States.
That's about Justice John Paul Stevens. What do you think
about that comment?
Judge BORK. Just as the comment about Justice Powell, when I
said they missed the mark very substantially, I was being a bit
wry; they missed the mark by 180 degrees.
Senator SIMPSON. Well, indeed they have, and they have fired all
the grapeshot in their cannon at you, and they missed it just as
badly. And I think history will bear that out.
I'm interested in another thingoh, I know one I wanted to
cover. Back to the issue of equal protection. How much time do I
have, please? Forget it, they are not going to keep track.
The CHAIRMAN. Just keep going.
Senator SIMPSON. The issue of equal protection
The Chairman. About 6 or 7 minutes, Senator, but, if you need
more time, take it.
Senator SIMPSON. YOU noted that the military draft1 think this
is important, I want you to hear this little scheme here.
675
Senator SIMPSON. Heh, heh, heh. [Laughter.]
That the draft was a good example of a case where distinctions
based on race were improper, but distinctions based on gender
were not improper. Now, I should point out to youI know this is
hideousthat a majority of the Senators agreed with the finding of
the Supreme Court on that, and your example, that gender-based
distinctions are acceptable in certain rare circumstances. On June
10, 1980, the U.S. Senate itself voted to exclude women from Presi-
dent Carter's draft plan by a vote of 51 to 40. A number of people
on this panel participated in that vote, six of us sitting right here,
three Republicans, three Democrats, to exclude women from the
draft.
Now, I just want to make a point that Congress was quite willing
to make a gender-based distinction in this case, present criticisms
and dire comments notwithstanding. I think that's kind of impor-
tant to kind of touch on occasionally. That's real life.
The first amendment, that is a troubling thing. I cannot believe
that anyone is going to try to blast you away on the first amend-
ment. I do not know of anybody that has done more.
There should not be a person in this country to believe that you
would not broaden it. You have said you would, and, as I say, your
favorite guy that was doing the posters over there, that you al-
lowed him to do that, has done some ever-new ones now. I want to
get over and see them, and they are on the wall.
And you gave him all the ability to do that, to raise hell about
this President, your President, his President, and he is doing it
again. It is opinion, it is his expression, and, that is real life.
You did that, didn't you, in that case?
Judge BORK. Right.
Senator SIMPSON. I have read that case, and it is fascinating, and
of course several have read about the fact that you must be willing
to bear criticism, disparagement, and even wounding assessments.
We all have been through that one. We have been there.
But I loved what you went on to say. You said:
Perhaps it would be better if disputation were conducted in measured phrases,
and calibrated assessments, and with strict avoidance of the ad hominem, better,
that is, if the opinion and editorial pages of the public press were modeled on The
Federalist Papers.
But that is not the world in which we live, ever have lived, or ever likely to know,
and the law of the first amendment must not try to make public disputes safe and
comfortable for all the participants. That would only stifle the debate.
In our world, the kind of commentary that the columnists have engaged in here is
the coin in which the controversialists are commonly paid.
I like that. That is pretty gutsy, strong, fair, firm, protective of
the first amendment, and people.
Well, I am going to conclude here, but I hope everyone sees the
essence of what is happening here, the essence of this cause against
Judge Bork. I do not want anybody to miss this.
The opponents of Robert Bork are the opponents of any kind of
change in the Supreme Court in my view. They really wanted to
halt Sandra Day O'Connor. They really did. But they could not
really challenge that remarkable, steady, personable lady. They
just could not do anything with her.
And she is a tremendous lady, and jurist. They really wanted to
toss Rehnquist off the side of the ship. But as they frothed at the
676
mouth there, they finally sobered up and realized he was already

on the Court. That was a dazzling thing for them to decide, that
finally, they thought, well, we will kick him off as Chief Justice but
he is still going to be there, and then they are going to bring in
somebody else.
That brought a note of sobriety to their cause. He was already on
the Court. And with Scalia, they saw another bright, dedicated, ar-
ticulate spirited man, and they had already spurted all the venom
out of their glands with Rehnquist when he came along, and they
were then exhausted from the attempt to land the fatal strike on
Rehnquist and they slipped back to their lair, or den, whichever
you wish
Senator DECONCINI. Will the Senator yield just for a clarifica-
tion.
Senator SIMPSON. Yes.
Senator DECONCINI. My recollection on the Sandra Day O'Con-
nor, that it was the National Right To Life that testified in opposi-
tion to her. The president of that group is a friend of mine, and
from Arizona. I had big arguments with her, and she came and tes-
tified here in opposition to Sandra O'Connor.
I just thought the record ought to show that. I know the Senator
wants to know that all of those so-called radical groups are proper-
ly identified, and I do not consider that a radical group.
Senator SIMPSON. I will finish and then you can go on with your
explanations. You know, you name them. I am just talking about
the fact that there were groups. I do not consider that group a radi-
cal group.
What had they learned in the fray after they went through that
exercise? They learned really only one thing as I see it.
They learned that you were next. They knew the minuteI
think their worst fears were realizedthat you are the "live"
round that was coming at them the next time, and they went to
work.
And when Scalia raised his right hand on his oath, they raised
the stakes, and they said "Get Bork. He's next. Can't possibly miss
him on the next selection. That's him."
And they put their researchers and their minions to work, and
they readied their fund-raising apparatus, and they cranked up the
networking, and hours and days of work in a non-unanimous deci-
sion venture. Every utterance. I mean, you know, when you are
dragging stuff out of a question and answer session at a school in
1985, and then hearing it inyou knowthat took a lot of work. A
lot of people have done a lot of work.
The CHAIRMAN. Senator, if I can interrupt you just on that point
because I think it is very important.
I want the record to show that I went to Judge Bork yesterday,
and gave him a full transcript, told him that that tape had been
sent, unsolicited, to several people, apparently. I know I was sent a
tape. And I did not want him to be caught unaware by anything. I
had the tape transcribed, I gave it to him, told him I would not ask
him any questions about that tape, and for a full day, to give him a
full opportunity to look at it, and I am sure the tape was sent to
other people by a student up there, as I recall.
677
I may be mistaken. So I just do not want you to think that all of

a sudden, out of the heavens, came this
Senator SIMPSON. NO, no.
The CHAIRMAN. And then I was asked by a colleague whether or
not it could be played. So I just did not want anyone to think that
Judge Bork was not fully aware that (a) there was a tape and (b) he
had a written transcript, and even outlinedI believe my staff
even circled or pointed out for you where that point was.
Judge BORK. NO, I was not caught by surprise, Mr. Chairman.
The CHAIRMAN. I am not suggesting you think you were.
Judge BORK. And I was not disturbed by it because it is an unex-
ceptional remark, and it is the only time I did not add a qualifica-
tion which I have added on every other occasion. So that does not
bother me at all.
Senator SIMPSON. Mr. Chairman, I have before me, right here,
the excerpt from the question and answer question. It was handed
to me this morning.
The CHAIRMAN. I am not suggesting, Alan, in any way, that you
should have known that. I just wanted everyone to know, though,
that Judge Bork knew of that, and possibly, if I had thought about
it, I should have handed the transcript to everyone.
But obviously, the most important person to be aware of it was
Judge Bork, and that is all I meant to state. I am not trying to
make any more of it than it is.
Senator SIMPSON. Mr. Chairman, I will conclude in 2 minutes,
and I promise that, from these notes that were thoughtfully pre-
pared by me, because I am trying to figure where it all started.
And as I say, it started when Scalia was approved in the most
remarkable fashion. That was a remarkable confirmation hearing.
So then they set up their early-warning system: if Robert Bork is
nominated it will be destructive, it will be contentious. And then
they said this to the American people, after Judge Lewis Powell
announced his retirement.
They said if Robert Bork is nominated it will be destructive, con-
tentious, quote, "time-consuming"whatever that connotationwe
know what that means in the Senate. It will be a struggle. It will
be a watershed, shifting the balance, and, there was a kind of a
warning to our President that he should not do this.
When the President nominated you they detonated the package,
they were ready to do that, and they did it in a way I think where
the shards and the chunks from the explosion, you know, were des-
tined to be a little hurtful and painful, and injure.
Because they really do not care about that. The personal anguish
of that to you is not important to those kind, and yet they will tell
you they represent the oppressed and the disenfranchised, and the
powerless, and those who need care. But give them another human
being to gnaw on and they will do it in a rather extraordinarily
tough, mean, nasty fashion.
So what that they maligned your character, which is all we have
in life. Your life style. Why wouldn't any thoughtful American be
stunned, and deeply concerned in the full burst of all that, as they
fired that around the United States? They were saying you were a
racist, a sexist, one who would deny women their rights. A segrega-
tionist. A peeper at the keyhole. An invader of privacy. Insensitive
678
to homosexuals, and in favor of mandatory sterilization of your

fellow man and woman.
Who wouldn't be frightened by that, or deeply appalled and con-
cerned?
Well, I think the American people are terribly fair. They hear,
and they know, and you have been right there for four days, and
the interested ones have been observing the process, and they have
to see you and know your persona as a most extraordinary man,
with a dazzling record. A creative, thoughtful man with an agile,
adroit and facile mind.
And the American people, and our colleagues would, in my mind,
Mr. Chairman, be ill-served, and very certainly cruelly short-
changed if you are to be rejected in these proceedings. Thank you.
I was going to question next but the Senate Majority Leader is
here, and I will yield to him, and then to Senator Grassley, as I
understand he may have questions.
And then I will take my turn. Judge, would this be an appropri-
ate time to take a 5-minute break?
Judge BORK. I think if it is all right with the Majority Leader, I
think it would be fine.
The CHAIRMAN. All right. We will break for 5 minutes and then
come back.
[Recess.]
The CHAIRMAN. The hearing will come to order again.
Let me suggest to those who have been asking in the audience,
and the press, and the witness, and my colleagues, that it is my
intention to finishI was going to say finish with you today, Judge
Borkthat comes out sounding the wrong way. For us to finish
today, and you need not, hopefully, have to come back after today,
and move on with, quote, the public witnesses the beginning of the
week.
The order will be Senator Byrd, Senator Grassley, and myself,
and then I believe after that, Senator Specter, and we will go on
down the line from there.
Having said that, I yield to Senator Byrd.
Senator BYRD. Thank you, Mr. Chairman.
I understand that Mr. Metzenbaum wants me to yield to him,
briefly.
Senator METZENBAUM. I appreciate the courtesy of the Majority
Leader.
Judge Bork, when we were talking about the American Cyana-
mid case, you said "They offered a choice to the women. Some of
them I guess did not want to have children".
Apparently that testimony was heard by one of the women, be-
cause a telegram has just been received by the Chairman and
myself which reads as follows:
I cannot believe that Judge Bork thinks we were glad to have the choice of get-
ting sterilized or getting fired. Only a judge who knows nothing about women who
need to work could say that. I was only 26 years old, but I had to work, so I had no
choice. It is incredible that a judge who is supposed to be fair can support a compa-
ny that does not follow OSHA rules. This was the most awful thing that happened
to me. I still believe it's against the law, whatever Bork says. Betty Riggs, Harris-
ville, West Virginia.
679
Judge BORK. That was certainly a terrible thing for that lady,
and it was certainly a terrible choice to have to make. Of course
the only alternative was that she would have been discharged and
had no choice.
I think it was a wrenching case, a wrenching decision for her, a
wrenching decision for us, but the entire panel agreed onthe
OSHA review commission agreed with us, agreed that it was not a
violation of the hazardous conditions provision of the statute.
The entire panel I sat on agreed. The full court, all eleven of us
did not sit to reverse it, and I do not know if anybody appealed to
the Supreme Court, but if they did, the Supreme Court did not take
it.
Senator METZENBAUM. Judge, I do not wish to belabor the point,
but I have since been informed, and I do not know if this is fact,
that the lead level could have been reduced had the company been
willing to expend the necessary funds. I am not certain that that is
accurate.
Judge BORK. I am not either, Senator, because that was not in
the case. The administrative law judge, as I recall, had found that
the lead level could not be reduced, and we do not review factual
findings unless there is no substantial evidence for it.
Senator METZENBAUM. I thank the Majority Leader for having
yielded.
The CHAIRMAN. On this point, to be precise, did they not say that
it could not be economically
Judge BORK. Well, they probably meant it would close the plant,
or close that unit, if they did it.
The CHAIRMAN. Yes.
Judge BORK. Which would also put the women out of a job.
The CHAIRMAN. The Senator from West Virginia.
Senator BYRD. Mr. Chairman, I thank you.
Judge Bork, I am sorry I have not been able to be present to
hear the questions and the answers. I have watched whenever I
could, but have been busy on the Senate floor, and I do have the
tapes of the hearings thus far, and Mr. Chairman, I hope through
the weekend to be able to watch the tapes and catchup with the
committee in its work.
Judge Bork, I have stated before, and I will state today, that I
am undecided as to how I will vote on your nomination.
There are those who may wish to categorize my vote, or pigeon-
hole it, or put it in whatever niche they wish, but I do not know
how I would vote if I had to cast a vote today.
I have been in the legislative branch of our government now for
42 years, 35 years on Capitol Hill, 29 of which years have been in
the Senate.
I have naturally, in that course of time, acquired a deep sense of
dedication to the legislative branch, and so the few questions that I
will ask will pertain to the subject of congressional standing.
I very much support the constitutional principle of separation of
powers, very much support the constitutional principle of checks
and balances, and particularly on these two bases, I have a great
concern with respect to some of the developments that have oc-
curred within the last few years.
680
And so I am going to ask just a question or two, or three. I un-
derstand that Senator Kennedy has already gotten into this area of
questions.
But let me say that I would like to follow up on that discussion,
and ask you whether the institutions of the House and Senate can
bring a case in federal court, to determine what I conceive to be
their constitutional rights with respect to the executive branch, let
us say.
You spoke about this in the context of the case of Barnes v.
Kline, in which the President had vetoed a bill, and the Senate
sued to have a court declare that the President's pocket veto was
invalid under the circumstances, and that the bill had therefore
become the law.
The majority in your court found in favor of the Senate, but I
believe you wrote a dissenting opinion on the grounds that the
Senate did not have such standing to bring such a case.
I believe you have said in the course of that opinion, that, quote,
"We ought to renounce outright the whole notion of congressional
standing".
Have I correctly quoted you, Judge Bork.
Judge BORK. YOU have, Senator Byrd. May I say one thing about
the case, however?
Senator BYRD. Yes.
Judge BORK. The majority did not find for the Senate. The major-
ity created a new doctrine in our court, for some reason. In fact,
our court is the only court that ever invented the doctrine of con-
gressional standing. It does not exist in any other court and it only
dates back to 1974. But, what the majority did in this case was say
yes, the Congressmen have standing but, in the exercise of our dis-
cretion, we will not hear the case, which is yet another novel doc-
trine.
Senator BYRD. We will not what?
Judge BORK. Hear the case. They refused to hear the case. They
said that Congress has standing, but we have equitable discretion
they called it various namesequitable discretion to refuse to hear
it anyway, which is also a revolutionary doctrine, so they refused
to hear it.
No, I am sorry. I take it back. I have got the wrong case. I am
thinking of Vander Jagt v. O'Neill, in which the majority did
invoke equitable discretion and refused to hear the case. That was
a case in which Congressman Vander Jagt sued to get proportional
representation on House committees. No, that is right. I take it
back. In this case, Barnes v. Kline, which involved the same prob-
lem, the majority did hear the case on the pocket veto grounds.
Senator BYRD. And I believe that you yourself have been quoted
as saying that pocket vetoes can be valid. Am I correct?
Judge BORK. They can be valid only in certain circumstances,
Senator.
Senator BYRD. Or they can be invalid.
Judge BORK. They can be invalid. That is it. When I was in the
Department of Justice as Solicitor General, Senator Kennedy
brought a suit about a pocket veto saying it was not a valid pocket
veto. The court I now sit on held that it was not a valid pocket
681
veto. I did not ask the Supreme Court to review that because I
thought it was an invalid pocket veto.
When the subject came up again in the Ford administration, I
told Attorney General Levi that I would notit was not a pocket
vetothat I would not argue the case and would not appear on the
brief because I thought it was an invalid pocket veto. I then pre-
pared an extensive memorandum, which this committee has,
saying that when Congress leaves an officer or somebody behind to
receive a return veto, even though they are in adjournment, you
must give a return veto and not a pocket veto.
President Ford was persuaded to say that for the remainder of
his administration, he would not use the pocket veto if there was
somebody here to receive a return veto. That was a clear case in
which I advised the executive that he did not have a constitutional
power the executive wanted, but that Congress could behave in this
way.
Senator BYRD. Let me get back to the particular quotation that I
mentioned earlier and I will repeat it. "We ought to renounce, out-
right, the whole notion of congressional standing." If that is still
your opinion, Judge Bork, what is the basis for that position?
Judge BORK. Well, it is simply this, Senator. I am not hostile to
congressional standing any more than I am to Presidential stand-
ing or judicial standing. The theory upon which that casethe
standing was rested there was that the President was not carrying
out a law and that interfered with congressional powers and there-
fore, they could sue. But, if that is true, I do not see why, if Con-
gress overrides a Presidential veto and he says, that is unconstitu-
tional, I do not see why the President cannot sue Congress.
In fact, in the Chadha case, which struck down the legislative
veto in the Supreme Courtthe President did not have to wait for
that case if this governmental standing power is correct. The Presi-
dent could have sued long ago to strike down the legislative veto.
And it is not just Presidential standing. It is judicial standing. If a
judge feels that an act of Congress unconstitutionally interferes
with his functions, he could sue Congress.
And, in fact, it even got worse than that because in the Seventh
Circuit Court of Appeals, when they reversed two district court
judges, and the district court judges appealed to the Supreme
Court, not just the parties, the judges appealed on the grounds that
their offices had been interfered with. So I am afraid what hap-
pens, if we allow standing to expand like that, is the courts will
become the most important branch of government and will umpire
disputes everywhere between themselves and the other branches
and between the other two branches.
Now, in a case like the kind you are talking about, a private
party can usually sue. That is, if Congress passes a statute, and the
President fails to carry it out, such as an appropriation or some-
thing of that sort, usually a private party can say, wait a minute, I
should have gotten that money but the President did not behave
correctly, and he has standing. That does not put the courts into
the middle of running the other two branches.
There is no preference for the executive branch, in my view, in
this matter. It is simply a matter of not bringing all governmental
682
issues into the courts right away as everybody sues everybody else
between the branches.
Senator BYRD. This still leaves me troubled, though, Judge Bork.
If you take the position that "we ought to renounce, outright, the
whole notion of congressional standing." Let us confine this to the
point that was beingthe thrust of your statement, that point.
Notwithstanding the fact that you say that this is not only with
congressional standing, but also with the executive and the judicial
standing.
It seems to me that to say that if this is recognized in one case, if
standing is given, let's say, to Congress, then we open the door for
all sorts of cross-currents of suits on the part of the executive, on
the part of the Congress and on the part of the judiciary and all of
that. It seems to me, most respectfully, that is carrying the matter
to an absurd conclusion. You would use the terms reductio ad ab-
surdum.
After all, this is the 199th year of the executive and the congres-
sional and the judicial branches. Next year will be the 200th year,
1789 will not be the 200th year, that will be the 201st year. That is
the first year in the third century. Well, in all of these centuries, I
do not think this matter has been decided and I think you pointed
that out. But it would seem to me that if there has been no conclu-
sion by the Supreme Court, that Congress would have standing, or
that either of the other branches would have standing.
There has been no decision by the Court or that they would not
have standing. It seems to me that we would have already seen
this enaction, one going at the other and certainly, there would
have been more opportunities than we have seen, which have been
of rather recent vintage, in which the Court would have had the
opportunity to say one way or the other on this question. But, let's
move on from that just a moment.
You also mentioned private parties. Suppose there is no private
party that can show injury and let's take, for example, I do not
knowperhaps we should not comment on the matter that is
before the Senate right now in which the Nunn-Levin Amendment
was voted on, which goes to the interpretation of the ABM Treaty
and whether or not it should be the traditional interpretation of
the broad. You may or may not have an opportunity to study that
case and perhaps make a decision, render one on it.
But, let's put it in this context. Let's say that the Senate ap-
proves the ratification of a treaty that provides certain rights and
obligations for our government in its embassy abroad and the for-
eign country's embassy in our country. And let's say that under
the interpretation of that treaty, based on the counsel and advice
and testimony of the State Department and the other executive
witnesses before the appropriate committee, certain kinds of intelli-
gence gathering could be engaged in, within the context of that
treaty. And so the Senate, by two-thirds vote, approves the ratifica-
tion of the treaty.
Now later, the President decides to reinterpret that treaty, let's
say. He says, no, we cannot do this. We will not be able to do this
intelligence gathering. Say it is a subsequent President and he in-
terprets it differently. And so, the Senate, having been the party
under the Constitution which had the role of approving the ratifi-
683
cation of the treatythe Senate does not ratify treaties. The
Senate may approve the ratification of the treaties. The President
ratifies treaties, after the Senate gives its approval.
But, let's say that the Senate just does not take umbrage, but
that some vital matter to the security interests of this country,
hangs on the action of the President in having reinterpreted that
treaty. Now, why should not the Senate and the House, for that
matterthe House does not have a role in approving the ratifica-
tion of treaties, but the House has a role in appropriating the
monies to carry out the objectives of the treaty.
Let's say the Congress or the Senatelet's narrow it to the
Senatethe Senate wants to bring this case. There is no injured
party. I, as a Senator from West Virginia, cannot say I have been
personally injured and so I cannot fulfill that requirement of
injury in fact, but are you, as the judge on the Supreme Court or
on the circuit court in which this might be brought, going to deny
the United States Senate standing to challenge the President's
action in reinterpreting that treaty?
Judge BORK. It seems to me, Senatorwell there are a number of
points to be made in responsebut we did not face a case in which
the Senate, as suchI think this case was simply a number of Con-
gressmen and I do not know if there is anything in this opinion
about the Senate as such
Senator BYRD. Well, I am going to your statement, "we ought to
renounce, outright, the whole notion of congressional standing."
Well, the Senate is one house of the Congress, as we both agree, so
whether it is the Senate or both houses, is the Congress or is the
Senate going to be denied standing in this case?
Judge BORK. Frankly, Senator, it depends in part upon a prior
statement you made, or it may depend in part upon a prior state-
ment you made. You said you did not think that allowing congres-
sional standing led to Presidential standing or judicial standing.
Senator BYRD. I do not think I said that. I am sorry if you inter-
preted my saying that.
Judge BORK. Well, I am sorry if I did, too. I thought you had said
that my statement that once you allow congressional standing, you
have to allow Presidential standing and judicial standing and so
forth was reductio ad absurdum, which I took to mean that you
thought a line could be drawn between congressional standing
and
Senator BYRD. NO, no.
Judge BORK. Well, in that case, it would beI should also say
this. There was no congressional standing or any other kind of gov-
ernmental standing until 1974 in this circuit. It just did not exist
and the country got along very well with the usual methods of
combat between the executive branch and the legislative branch,
which was Congress withholding appropriations, bargaining in var-
ious ways, or passing a statute. For example, in the case you cite,
Congress could pass a statute invalidating that treaty or it could
pass a statute that the President is directed to do this. It would
have to override his veto, of course, but you could do that.
Now, Congressional standing, if the kinds of concerns
Senator BYRD. Could I ask you a question?
Judge BORK. Certainly.
684
Senator BYRD. Suppose time does not allow Congressthe securi-
ty interests of this nation are involved in this intelligence gather-
ing somehow. Time does not allow for the passage of a bill or let's
say that Congress passes that bill and the President vetoes it, says
the heck with Congress. I am going to interpret this the way I
want to.
Judge BORK. That is right. You would have to get a two-thirds
majority then, to override the President or unless you could threat-
en the President with withholding some other thing that he wants.
Senator BYRD. Well, let's say we got the two-thirds majority and
overrode him and he said, well, the heck with that. I am still going
to interpret this, this way. Now, I am not an injured party there. I
cannot show injured party, that I have lost anything as a result,
but why shouldn'tif you said, as you said, "we ought to renounce,
outright". That means emphatically, not ifs, ands or buts, without
any exceptions, "the whole notion of congressional standing."
Judge BORK. Well, Senator, I do not think, from my experience,
that you would get any greater speed litigating through a District
Court or Court of Appeals or the Supreme Court, than you would
trying to pass a statute or doing political battle with the President.
And if the horrible consequences that I imagined would flow from
recognizing standing in these cases do not, in fact, flow, then a
large part of my objection vanishes.
Senator BYRD. YOU see, if the horrible circumstances do not, in
fact, flow
Judge BORK. If the horrible consequences, such as Presidents
suing Congress and the Defense Department suing the State De-
partment and so forth and so on, which sometimes looked like it
might happen, and judges suing other judges and judges suing Con-
gressmy concern there is you are making the judiciary the
umpire and central branch of deciding questions, on a daily basis,
between the other branches and between units of the other
branches and so forth. The judiciary really becomes the dominant
branch of government, which is really what I have been trying to
avoid.
Senator BYRD. Judge Bork, the judiciary can throw this case out
or that case out on its merits. But if this party, the third branch
the Senatecannot even get inside the door, who is going to settle
this case. And let's say the security interests of this country are
involved. You are saying to me, as you said at the time I referred
to in using this quotation, you ain't never going to get in this court.
Let's take the Panama Canal treaty, for example. I was the ma-
jority leader at the time of thatthey are treaties, not treaty, but
let's, for the sake of argument, refer to it as the Panama Canal
treatywas approved by the Senate. The only way we could get
that treaty approved was to have an amendment, actually two
amendments, one giving the clear rights to the United States to in-
tervene at any time to keep that Canal open, after the year 2000,
and the other was that the United States would go to the head of
the line in the event of war.
Now, let's sayMr. Reagan was very much opposed to those
treaties, but we note that he has not done anything about negating
them since he has been President. He has lived up to them. But
let's say that he or a future President would say, I am not going to
685
live up to that and we get into a war and he says no, personally I
have never believed in it and I think I am justified in nullifying
those treaties and I am not going to insist that our ships go to the
head of the line.
Well, now that was one of the few bases on which some Senators,
who sit at this table, voted to approve the ratification of that
treaty. That was not just a majority. As I have understood you
heretofore, you have said that in cases between certain litigants,
that the majority will, or the legislature in that instance, should
prevail. Here, we have not only the majority will, but the super-
majority, which was required under the Constitution.
So, you have a super-majority in the Senate that approved the
ratification of that treaty on the understanding that the adminis-
trationeverybody interpreted it the same way and the other
party interpreted the treaty in the same light and here we are now
with a subsequent President who says, I am not going to observe
that treaty. It is null and void as far as I am concerned. Now, let's
say that security interests of the United States are very much in
jeopardy there and the lives of men and women are in danger.
By virtue of the reinterpretation of that subsequent executive,
who is going to be able to decide. As I said the other day, who
would decide when doctors disagree? You have the executive
branch, you have the legislative branch, they are in disagreement
here. You had a super-majority in the legislative branch that said
that it would be this way. Now, we have got to go to some umpire
or referee to determine this in the interests of the United States.
Judge BORK. I certainly see the concerns you have, Senator, and
I think they are well-founded concerns. The difficulty I haveit is
not a difficulty, I just observe that it has never proved to be neces-
sary to go to a court for a reason like that in our history so far.
Now, Justice Powell did suggestalthough he was not very fond of
congressional standingthat if there was an absolute impasse be-
tween the President and the Congress, he would allow congression-
al standing. I do not know. I have never faced a case like that. But
the difficulty is, additionally, that quite aside from any views on
standing, in the Goldwater v. Carter case, four of the justicesthat
is, Justice Rehnquist, Chief Justice Burger, Justice Stewart and
Justice Stevens, would have applied the political question doctrine
and made the entire dispute, over the termination of the treaty,
non-justiciable. If they are right, there are other doctrines that
stand in the way and I have not decided those questions. I have no
idea. But it may be that the courts are going to have difficulty with
suits about that kind of thing, quite aside from any views of mine.
But I would just simply observe that for 200 years, we have never
found it necessary to have a court decide who is right about a
treaty or something of that sort, between the President and the
Congress. Maybe there will come a terrible emergency some day
and I do not know what the courts will do upon that occasion. But
certainly, Senator, I would suggest it should not be a routine
matter that the Congress and the President and the judges and the
various departments all sue each other in order to find out where
everybody stands.
I am not trying to offer you any kind of alliation of my views. I
have just never faced a case where there was a great emergency
86-974 0 - 8 9 - 2 4
686
and the Congress and the President were at an impasse. I have just
never seen such a case. But if I faced one, I do not know what I
would do.
But I certainly, as I said, do not want that to be a routine subject
of court litigation because the courts will sit just to decide what are
essentially political questions all of the time.
Senator BYRD. Well, we are living in a fast-moving age and who
would have known when I graduated from high school that we
would have computers or that we would be talking about laser
beams of SDI or any of these things. And the common law was
made of precedent. There are Senate precedents. There comes a
time when we set a precedent. We would not have precedents if
they had not been new in the beginning.
So there may be some unforeseen need and I believe that the
possibility of that need arising is probably greater than it was 50
years ago or 100 years ago. And so I think, as Mr. Justice Powell
stated in the case to which you referred, by defining the respective
roles of the two branches in the enactment process, this court will
help to preserve, not defeat, the separation of power.
It seems to me that it would become necessary for the court at
some point in time to give the Congress the standing because other-
wise that case is never going to be decided by anybody and what
you are sayingI say most respectfullyyou are saying, let the
Congress and the executive engage in guerilla warfare. Let them
engage in guerilla warfare.
If the President wants to take such and such an action, let the
Congress reject his next nominee to the Supreme Court or cut off
the money. Congress controls the purse. And confrontation is what,
I think, would ensue. It seems to me that could greatly damage the
country.
Judge BORK. Well, Senator, we have, in my opinion, relied upon
three different lines of Supreme Court precedent. Maybe the Su-
preme Court will reconsider those precedents but I consider them
to be law.
Senator BYRD. YOU consider them to be law until such time as a
subsequentPlessy v. Ferguson was law but a subsequent Supreme
Court decided that it was wrong in the light of different circum-
stances. So we have precedent. You consider that to be law.
Judge BORK. For a Circuit Court Judge
Senator BYRD. Yes.
Judge BORK [continuing]. It is. A Supreme Court precedent is law
to me.
Senator BYRD. In other words, the doctrine of stare decisis has no
persuasion with you as a Supreme Court judge; is that what you
are saying?
Judge BORK. NO, sir. I am not saying that. I am saying that a
Supreme Court justice can reconsider a case, as apparently you
want the Supreme Court to reconsider its cases, which really do
not support standing in this thing. But I am saying a circuit judge
certainly cannot reconsider the Supreme Court's cases.
Senator BYRD. Well, the Supreme Court at some point in time
may have toit may be confronted with this challenge on the part
of the Senate or both Houses and if you are on that court, you will
be confronted with that situation. And suppose the national securi-
687
ty interests are very much in the balance and there is no person
per se who can say that he has been injured by the act of the Exec-
utive.
Judge BORK. Well, I canI am sorry.
Senator BYRD. But to let that decision stand would give succor
and comfort to adversaries, to the Soviet Union, let's say. And it is
imperative that somebody decide this, because if somebody does not
decide it, it is just going to stay, it is going to remain an impasse.
Now, are you saying to me that you are going to still, 5 years
from today, 10 years from today, stand by that statement that you
made in the beginning. It was pretty much open and shut; we
ought to renounce outright the whole notion of congressional
standing.
Judge BORK. Well, I certainly would renounce it outright as far
as the regular kind of case is concerned. I have never seen a case
and I do not know how I v/ould react under the dire circumstances
you state. You know, the Supreme CourtI do not want to get
myself into trouble on another subjectbut the Supreme Court has
said no prior restraints, but it has always kept the possibility of a
prior restraints upon newspaper publication in the case of a troop
ship sailing out in a war and the paper is going to publish where it
is.
So there may be that enormous national emergencies like the
troop ship will alter law, but I have never faced a case like that,
and to tell you the truth, Senator, I have not thought about it.
Senator BYRD. Well, you have never faced a case like that.
I could say the same thing with regard to a set of circumstances,
for the sake of argument, dealing with a Senate amendment or a
certain motion. But at some point the Senate will have to decide
that and it thereby will set a precedent, or it may overrule some
previous precedent.
I think I hear you sayingand I am not attempting to put words
in your mouth, you control that side of the tablebut it seems to
me, I would say, well, I do not know how the Senate would come
down in that hypothetical set of circumstances, but I am not going
to say never. I am going to say, let's see the circumstances when
they come, let's see what they are, and in the light of previous
precedents or if there are no precedents, let's let the Senate speak.
In the Senate, if someone raises a constitutional question, the
Chair does not rule. The Chair submits that question to the Senate,
a constitutional question. So we may have to decide a constitution-
al question in the future that we have not decided yet. And today I
might maintain a certain position but it would be a little hard for
me to say never.
I am hoping I am hearing you say that you have not been con-
fronted with a compelling and persuasive set of circumstances yet
but the door is still open.
Judge BORK. Senator, let me say this. In the routine kind of case
in which the President and the legislative branch get into a squab-
ble over whether an appropriations bill is being properly carried
out, I think there should not be congressional standing or Presiden-
tial standing or judicial standing in that kind of a case and what I
am really trying to protectthis is an aspect of my general philoso-
688
phy of judicial restraintwhat I am really trying to protect is to

prevent the courts from stepping into legislative business.
I mean, we will be moving in and deciding what is legislative
business, what is Presidential business and so forth. The legislative
branch ought to be supreme in that area and not the courts. But
you are quite right. If somebody had saidbefore Near v. Minneso-
ta, the great case involving prior restraintsif somebody had said
there are no prior restraints, it can never be, and then the troop
ship case comes up when the paper is about to publish the details
of a troop ship in the middle of a way, the courts tend to make an
exception for that.
Maybe the same thing would happen here if it is the kind of a
dire circumstance where failure to act is going to play into the
Soviet Union's hands or something of that sort. I cannot foreclose
that possibility.
Senator BYRD. SO it is possible that Congress could be given
standing?
Judge BORK. Yes. It is possible in that kind of a case. I do not
think in the routine case I would ever agree to it.
Senator BYRD. SO the statement, "we ought to renounce outright
the whole notion of congressional standing," you do not subscribe
to that 100 percent today?
Judge BORK. Well, I subscribe to it in the regular kind of case. I
do not think the courts ought to thrust themselves into legislative
and Presidential business and be deciding it. You give me the ex-
treme case which I never thought of when I wrote that, and I have
to admit that I do not know exactly how that case would look to
me if it comes and it is extreme enough.
I am not very happy about the thought that the national security
is going down the drain while a court is standing there saying,
wellso, you know, in that kind of a case one might try to fashion
a doctrine. In the extreme case, not the regular case.
Senator BYRD. It would be the extreme case I would think that
would get to the Court.
Judge Bork, I thank you. I have enjoyed the little bit of partici-
pation in your hearing that I have been able to take part.
I thank you, Mr. Chairman, for the courtesies extended to me.
I find, Judge Bork, that I leave as I came, undecided, but unlike
you in the matter we have been discussing, I am going to happen to
make a decision one way or the other before the year is out. I hope
that I make the right one.
As I said the other day when I was here, I am going to be fair to
you. I am going to look at all the testimony and continue to listen
to my constituents, pro and con, and talk with my colleagues, con-
sult with my conscience, pray about it and I hope that in the end I
will do the right thing.
I thank you both.
Judge BORK. Thank you very much.
The CHAIRMAN. I am sure you will, Senator.
Before we move to the next witness, I notice that the former Sec-
retary, Carla Hills is out there. Welcome, Madam Secretary. It is
nice to have you here.
I believe our next presenter or questioner is Senator Grassley
from everyone's favorite State of Iowa, these days.
689
Senator GRASSLEY. First of all, Mr. Chairman, I am glad you are
here in person, even though I would have said this for the record
in any event. But I want to thank you for the way you have con-
ducted these hearings. You have handled them very well. It has
been a very difficult job. You have been under a lot of pressure, but
you have handled yourself and the committee extremely well and I
want to thank you for that.
Again, Judge Bork, I have got to say good afternoon and compli-
ment you to a considerable extent. This is my last round of ques-
tioning for this forum. I will have a lot of opportunities to question
other people about your qualifications, but I think I want to thank
you for your historic appearance before this committee.
I think your answers have been very sincere, most thoughtful,
and very complete. They have not only been complete to the ques-
tions that I have asked you, but also to my colleaguesI think
even to those who had their minds made up two months ago. You
have been very thoughtful and sincere and most complete in your
answers.
That is to your credit. I respect you for that. I think, too, that
there has not really been enough attention given to your family
and supporters. I think they need to be commended as well for the
grace and extreme patience that they have shown this week. The
entire family has my deep respect.
Even though you have been the one who has been on the firing
line, I am sure that they felt some of the pressures, even part of
the pressure that you have had.
Judge BORK. Indeed they did, Senator.
Senator GRASSLEY. Judge, I think I have a theory that helps ex-
plain the false and ridiculous notion that you have changed your
views here in order to improve your confirmation chances. This is
the so-called "confirmation conversion" idea. It occurs to meand
this comes after listening to you for 3 daysthat the real problem
here is that your views were so distorted for the past 2 months that
people actually began to believe everything that they heard and
read about you. People actually started believing their own press
releases, I believe.
I must say that the way this campaign against you have been
conducted is to the discredit of those lobbying against you. In any
event, now that you have explained why the campaign against you
has been nothing but one misrepresentation after anotheryou
have been accused of changing your mind.
This may be some sort of neat political trick, but I think most
people see it for what it is. My deep regret about all of this is that I
wish your Washington-lobbyist opponents had spent more time
taking the trouble to understand the powerful reasoning behind
your philosophy rather than mis-stating the facts in that philoso-
phy.
Those are just things thatyou know, I am part of the process
here and I have got to make up my mind and be responsible for
everything I dobut I guess I feel when people have suffered an
injustice, that bothers me very much.
Now I want to go on to some of the substantive things that I
have asked you about before, and I am going to pick up where we
left off yesterday. I asked you about the Finzer v. Barry case, the
690
D.C. Circuit case upholding the 500 foot limit on public demonstra-
tions in front of embassies in the District of Columbia, and I ex-
plained why I thought that the law was over-broad and beyond the
reasonable time, place and manner restrictions on the rights of
free speech and assembly. I also said that I was concerned about
this statute being selectively enforced.
In fact, last year my Judiciary subcommittee held hearings on
the very issue of selective prosecution in the District of Columbia.
We heard testimony, for example, that those arrested for protest-
ing in front of the Soviet Embassy were prosecuted while those ar-
rested in front of the South African Embassy were not prosecuted.
And you said yesterday that selective prosecution was not an issue
in Finzer v. Barry and I accept that.
But you also said that the case would have been analyzed differ-
ently if there had been such evidence. You even said that the
result might have been different. I would like to have you elabo-
rate on that. For instance, what is the test for selective prosecu-
tion, or how would your analysis proceed if that had been the case?
Judge BORK. Senator, you catch me without a prepared thought
on this subject. I know that selective prosecution, if it is proved,
may invalidate the prosecution, but not the law. It would not
change the constitutionality of the law. It would probably invali-
date the prosecution.
Selective prosecution is hard to prove unless you have got a mas-
sive pattern. Now, maybe there is a massive pattern in these two
cases you mentioned. But I have never faced that. I have never had
to decide that case and I do not want to decide it sitting here.
Senator GRASSLEY. NO.
Judge BORK. But if selective prosecution is proved, as I say, it af-
fects the prosecution. It would not affect the constitutionality of
the law.
Senator GRASSLEY. Well, I did not mean to catch you off guard. I
should go on because I can appreciate the situation you might be
in. We will drop it at that.
This week we have heard a lot about various speeches you have
made. I want to turn to a controversial speech that another Justice
made. This past May, Thurgood Marshall created some public con-
troversy of his own while he was giving a speech on the Bicenten-
nial of the Constitution. Justice Marshall stated at the outset of
that speech that he saw no reason to celebrate the achievements of
our Founders or the system of government they created. And I
don't mean to quarrel with Justice Marshall. I am not here to do
that. I think I understand his position because I did have a chance
to look at the entire speech. But I still found these remarks some-
what troubling, especially coming from one sworn to uphold the
Constitution he finds defective.
Are you familiar with Justice Marshall's comments? And, if you
are, then I would like to have your reaction to them?
Judge BORK. Well, I should say two things. Senator, I have only
seen newspaper accounts of it. The other thing is I don't think one
judge should be commenting upon the views of another judge. Jus-
tice Marshall has always been a very good Justice, and when I
argued before him I used to do fairly well. And I like him.
691
Having said that, let me just say, not by way of controversy, but
that I think there is good reason to celebrate the Constitution in its
200th year.
Senator GRASSLEY. Well, would you think that maybe the Justice
was trying to be just a little provocative?
Judge BORK. I don't really want to characterize his motives or in-
tentions or anything else.
Senator GRASSLEY. Well, I thought maybe I might get you to say
that people, even though they are on the Court, can be provocative.
You have called yourself provocative, you have been called provoc-
ative by others, and you have tried to do that in the various posi-
tions you have held; and you have done that well.
Judge BORK. I don't want to characterize anything Justice Mar-
shall did. It was obvious, from reading the comments of others,
that some people found them provocative.
Senator GRASSLEY. Well, I just thought that it might be an illus-
tration of the fact that even an associate justice of the Supreme
Court can have a different view on whether our Constitution is
worth celebrating, and I guess you said you thought it was worth
celebrating. So you can have a different point of view. It illustrates
that colleagues have different views or philosophies of government;
and, obviously, that is certainly true here in the U.S. Senate.
Maybe more so than any other body in the world.
Would it be fair to say that the D.C. Circuit on which you now
serve has members who don't necessarily share your legal philoso-
phy or your views about what you think the proper role of the
courts happens to be?
Judge BORK. That would be fair to say, Senator.
Senator GRASSLEY. HOW would you characterize your personal or
professional relationship with your colleagues?
Judge BORK. They have always been highly civil and friendly.
Senator GRASSLEY. Could you repeat, please?
Judge BORK. I say they have alwaysour relationships have
always been highly friendly, civil, good. I think we say, sometimes,
harder things about each other in print than we ever do in person.
In fact, our meetings are quite congenial and we, you know, see
each other at various social functions from time to time.
Senator GRASSLEY. I would like to follow up, then, with a ques-
tion in the area that touches on collegiality and open-mindedness.
You have testified that you have had occasions where you changed
your view of a case on the court of appeals after having had a
chance to hear oral arguments by the attorneys in the case, is that
correct?
Senator GRASSLEY. About how many times has that happened?
Judge BORK. Oh. I really don't know, Senator. I will tell you
almost routinely, if I didn t change sides. I don't always change
sides. I don't mean that. But almost routinely my perspective on
the case changes and the way I deal with it changes after oral ar-
gument; and sometimes, not infrequentlyI can't tell you how fre-
quentlymy decision about who should win changes after oral ar-
gument. Oral argument is extremely valuable to a judge.
Senator GRASSLEY. Okay. In other words, you might reach one
tentative conclusion about the proper outcome of a case after read-
692
ing the legal briefs, and then after hearing the lawyers make their
case during oral argument, you might be persuaded by better rea-
soning; is that how it might happen?
Judge BORK. Yes; or something comes up that suggests the ques-
tion to me, and you ask the question and you get an answer you
didn't quite expect, and you begin to change your view of the case.
Senator GRASSLEY. Have you ever had an occasion to change your
view of a case after you actually wrote the initial panel opinion;
say, when the case was reheard by the entire DC Circuit?
Judge BORK. Well, I have once changed my view of a case that
came out the same way by the panel. I mean, the result, who won,
was the same but the rationale changed. I once decided a case, got
a petition for rehearing and, after a lot of exchange, granted it, and
the panel changed its mind, 2 to 1. But then we reheard the case
en bane, and the en bane court sustained the panel. But I changed
my mind between two panel opinions.
More recently, I wrote an opinion joined by Judge Edwards, with
Judge Skelly Wright dissenting, upholding an EPA position against
a public interest law firmpublic interest group.
Senator GRASSLEY. Was that in National Resources Defense Coun-
cil v. EPA?
Judge BORK. Yes; National Resources Defense Council v. EPA.
And there was a petition for rehearing, and then it was reheard en
bane. It was a little odd, because none of us had reallyI think the
National Resources Defense Council got up and disavowed the dis-
sent in their favor by Judge Wright, and then the EPA got up and
disavowed my opinion in their favor, so we had to start all over
again.
But I asked a question and got a very unexpected answer and
came down the other way, voting for theremanding the case, in
effect, voting against EPA this time. I got a unanimous en bane
court on that one.
Senator GRASSLEY. Well, there has been some publicity in the
papers about your participation in that case, and I would think
that that would speak well of your capacity and willingness to
rethink positions, contrary to those who have criticized you as
being too rigid. This is not out of expediency, but in the spirit of
scholarly give and take and honest debate with your colleagues.
Judge BORK. That is what the law is all about.
Senator GRASSLEY. But I think my colleagues here on the com-
mittee, and eventually the whole Senate, ought to think of that as
one example. And not the only example, probably, because you said
there were several. In fact, "not infrequently" was the term you
used, where there had been arguments given after you had had a
chance to study the legal briefs and you changed your mind.
Judge BORK. Um-hum.
Senator GRASSLEY. SO you aren't in cement.
Judge BORK. By no means.
Senator GRASSLEY. When citizens come before courts in America,
they don't want a guarantee that they are going to win. But they
do deserve no less than a judge who has an open mind, one who is
willing to hear them out. Time and again I think you have shown
this ability to rethink positions in a rigorous and intellectually
honest way. My only regret is that all those in the chorus of opposi-
693
tion don't have the same skill. I wish these folks had some of the
same courage you have shown.
If they had it, they would have realized by now that you are pre-
cisely the kind of thinker that we ought to have on the Supreme
Court of the United States. They ought to be looking at you from
that standpoint. I hope that, after a week of you being here, people
will have a chance to study the hearing record and give consider-
ation to that.
Judge Bork, we haven't had many questions about criminal law.
And maybe, of course, that is because there really is no Washing-
ton lobby that is pro criminal. But nevertheless
The CHAIRMAN. There is a lot of lobbies that will be glad to hear
you say that, Senator. They will remind you of that statement be-
cause there are some who have been branded that way. I think you
are right. I agree with you, but I am just suggesting that.
Senator GRASSLEY. They are lucky I said it instead of Senator
Simpson.
The CHAIRMAN. That is right.
Senator GRASSLEY. Judge Bork, you have spoken out earlier
today against expansive interpretations of procedural rights that
would sometimes allow criminals to escape justice. I agree with
you, but I am interested in your rationale.
Could you explain some of the dangers inherent in what you
sometimes refer to as the "sporting theory of justice," or did you
refer to that as the "game theory of justice ?
Judge BORK. I don't recall that I did, Senator, but I am sure
there is a tape from someplace where I may have said that. I don't
recall saying it.
Senator GRASSLEY. NO. I should not credit you with those words.
But that is sometimes what it is called.
Judge BORK. Well, I haven't had great experience with criminal
law. I have argued some criminal law cases as Solicitor General in
the Supreme Court. I have decided some criminal law cases in the
DC Circuit. But I am by no means an authority on criminal law,
and I must say I really can't do much better than to say that the
question of resolving society's legitimate interests and the accused's
legitimate rights is very difficult. But in all cases I think the ac-
cused must be assured a completely fair trial, and that is about as
far as I can go. That is just a general philosophy. I am sure it is
with more experience with the field, I am sure I could elaborate
more.
Senator GRASSLEY. Well, could you at least explain for us the rea-
soning behind your vote in United States v. Brown, in which you
joined in overturning the conviction of nine defendants on a
number of serious criminal charges?
Judge BORK. Yes. That was an enormous prosecution and trial,
butI mean, many charges and defendants. But it turned out that
ait was a RICORacketeering, how is that? It was a Racketeer-
ing Act charge. But it turned out that one witness had sent out
word that he couldn't sit or something of that sortnot witness, I
am sorry. A juror had sent out word that he couldn't decide the
case, and the judge questioned him.
First, he complained about the statute. He didn't like the statute.
But then he said something that we thought had to bethe full
694
panel we sat onthought had to be taken as a statement that he
didn't like the evidence, either.
Well, it was a very awkward moment for the trial judge. He did
the best he could; finally, he excused the juror. But we thought
that there was too much chance, given what the juror had said,
that a juror who did not accept the Government's view of the facts
had been excused from the jury, and therefore the defendant was
denied a trial by 12 jurors. And we reversed for that reason.
We didn't reverse, we remanded for a new trial. We didn't do
anything else. But it looked very much as ifyou could not say for
sure that a juror who had decided for innocence hadn't been ex-
cused. The trial judge didn't mean to do that, but that is what the
transcript gave theimpression.
Senator GRASSLEY. Well, based on your action in that case, would
it be fair to say that you won't hesitate to overturn a conviction if
constitutional rights are violated?
Judge BORK. Well, that is right. That is right. No, Istatutory or
constitutional right has to be respected and the persons have to get
a fair trial, and get a chance at a juror12 jurors in case one of
them wants to acquit.
Senator GRASSLEY. The next question I am going to ask is prob-
ably more important to a non-lawyer like me than it would be to
people here who have studied the law to a great extent. You have
had a chance during this hearing to discuss many Supreme Court
cases and make references to Supreme Court Justices of the past,
even some of the present. I don't know whether you have had
much of a chance to give any thought to something like this, but
could you tell me which Justices, past and/or present, that you
hold in highest regard and which you would like to pattern your-
self after and why?
Judge BORK. Well, I think I had better stay away from contempo-
rary Justices, Senator.
Senator GRASSLEY. Okay.
Judge BORK. And as I think back
Senator GRASSLEY. Let me say there is not a United States Sena-
tor who hasn't thought of how he or she compares to the 1,750 Sen-
ators who have served in this great body. So I am asking you in
that same vein.
Judge BORK. Well, of the Justices I have admired in the past, I
think of Taft. Now, of course, there is the great Chief Justice John
Marshall, but he had a unique situation he was in when the Court
was starting off. And then there wasWilliam Howard Taft I
think is a better judge, a better Justice and deserves a better
memory than he has, because he used to work carefully with textu-
al materials and historical materials to try to give a very balanced
decision about constitutional matters.
He also once held the chair that I later held at Yale, so I have to
give him credit for that. He was also Solicitor General and circuit
judge. Those were his most important positions.
Charles Evans Hughes I always thought was very good. Robert
Jackson I liked. Of course, there are the great ones; you know,
Holmes, whom I have been criticizing here, but he is clearly a
great Justice. I mean, I criticized him on one case, which I have
695
been arguing about. But he was clearly a great Justice. Robert
Jackson I thought was good. There are a lot of them.
Senator GRASSLEY. What is there about these predecessors that
you would like to pattern yourself after? What is there about
them?
Judge BORK. Well, pretty much they are people of dispassionate
temperament, they make a serious attempt to locate the law and
locate the case they are looking at within the law, and are highly
intelligent in doing that, and highly sophisticated in doing that.
By and large, they are people who are practitioners of what we
have been calling judicial restraint. And Felix Frankfurter I should
add to that list, who was very good in a number of cases. In many,
most cases.
Senator GRASSLEY. I appreciate that very much. And, Mr. Chair-
man, this will be my last question.
Chief Justice Burger, while he was Chief Justice, spoke out on
the issues of judicial administration, lawyer advertising, frivolous
lawsuits, and the quality of lawyers admitted to the bar. I would
like to have your opinion in each of those three areas.
Judge BORK. Well, I, starting with the last, I don't thinkI think
the quality of lawyers being admitted to the bar is quite high. I
think there is a problem sometimes with trial lawyers because a
trial lawyer really needs a lot of experience and a lot of knowledge
of technical nuances, how to get evidence introduced and so forth,
and maybe there ought to be a little additional training for trial
lawyers, you know. But the quality of lawyers generally I think is
quite high.
I'm sorry, the other one was judicial administration andoh,
frivolous lawsuits.
Senator GRASSLEY. Yes. Frivolous lawsuits and lawyer advertis-
ing.
Judge BORK. Well, lawyer advertising, I confess, doesn't bother
me. Advertising for other products is a way of bringing information
to consumers and making them aware of a range of choice. It can
also be deceptive. I assume deceptive advertising by a lawyer could
be punished.
But I don't see whyone of the problems with a lot of the citi-
zenry, generally they have, is that they don't know where to turn
when they have a legal problem, and some of these new mass case
law firms I think do a good service in areas of routine wills, rou-
tine real estate transactions, and so forth. They provide services at
a low price and I think, as I understand it, they are pretty good at
it, and I think that their existence and what they offer ought to be
made known.
In addition to that, the commercial speech aspect of the first
amendment seems to say that lawyer advertising cannot be prohib-
ited. But, as a policy matter, I am not really troubled by it.
And judicial administration, the courts at all levels are suffering
from enormous overload, and I think we are going to have to re-
think rearrangements of courts and tribunals and jurisdictions in
order to cope with that problem. It is an enormous problem and it
takes a long time to talk about it.
Senator GRASSLEY. Did I miss the point on frivolous lawsuits?
696
Judge BORK. Oh, frivolous lawsuits, I am sorry. Yes, there are a
lot of those in the system, and I don't really know how to deal with
them. I mean, somebody has to address that problem because they
take up, you knowthey take up a lot of time and money for the
adversary who has to defend it even if it is frivolous, and they take
up a lot of time and energy from courts that could be better spent
on more serious matters. But it is a tough problem, how to weed
out the frivolous from the one that maybe looks a little odd but
turns out not to be frivolous.
It is a serious problem and I hope the bar, and the judiciary, and
perhaps the Congress can deal with it, and find mechanisms to deal
with it.
Senator GRASSLEY. Thank you very much for answering my three
rounds of questions. I appreciate it very much. I would like to re-
serve my time.
The CHAIRMAN. YOU need not reserve it. Any Senator who wishes
to ask questions after everyone else has, we are going to let Sena-
tors have an opportunity to do that, and we are going to stay here.
So you need not reserve it, I assure you, if you wish to ask ques-
tions.
Judge, I am going to ask my round of questions now, and then
we will break for a few minutes, unless you would rather break
now.
Judge BORK. NO, that is fine.
The CHAIRMAN. Judge, I am going to make a statement at the
outset with my friend from Wyoming here, and he sure has been a
friend, and I do not say that lightly. But I am going to disagree
with him on something here.
I want to, I think, put this in a slightly different perspective, and
I will just give you my perspective on this, and then I have several
questions.
It is true that there are interest groups that are characterizing
you in ways that you have never heard me characterize you, and
you never will hear me characterize you.
I heard one interest group referred to you as a Neanderthal. I
think that is preposterous, and I think it is undignified, and I think
it is untrue. But just so we all understand how this works, one of
the reasons maybe some of the groups are upset is because of other
people.
See, it's not only your adversaries but your friends who are help-
ing you, to paraphrase my friend from Wyoming.
Jerry Falwell said, and I quote: "We are standing at the edge of
history." This is on August 4th. "Our efforts have always been
stalled at the door of the Supreme Court and Bork's nomination
will be our last chance to influence this most important body."
Most people, most Americans, although they have respect for
Jerry Falwell, do not doubt what Jerry Falwell's political procliv-
ities are.
Then, a statement in the "Christian Voice" on July 27th, after
you were named, the following appeared:
Ensure conservative America, even after President Reagan leaves the White
House in 1988. We have a prime opportunity to give the Supreme Court its first
conservative majority since 1930. Did you realize that Justice Powell was the decid-
697
ing vote in winning the last eight pro-abortion cases brought by the Supreme Court,
by the American Civil Liberties Union.
There probably was a hiss when that was said. "Confirming
Judge Bork would change all of this." Let me just read, last, "Did
you realize"this is a Christian Voice broadcast"Did you realize
that Justice Powell was the deciding vote in winning the last eight
pro-abortion cases brought by the Supreme Court, by the American
Civil Liberties Union. Confirming Judge Bork would change all
that."
There's many more quotes. I am not asking you to associate with
that at all. I know you do not, either end. But the point is that this
thing feeds off itself.
Judge BORK. Oh, sure, sure. I understand. The people on both
sides of the issue are purporting to know what I am going to do
and they do not, and I do not know the Reverend Falwell.
The CHAIRMAN. I was not suggesting you do, and that is what
this hearing is all about. Our debate is, at least yours and mine so
far, to the extent we have had a debatenot a debate so much
but our differences, and I think they existthey are about funda-
mental rights and whether or not they are found under the Consti-
tution, within the Constitution.
And Judge, one of the reasons why some people on this panel
have raised the issue about consistency is thata little bit "you're
darned if you do, and you're darned if you don't." But your admis-
sions, or, your admissions may be the wrong wordit's too strong.
Your assertions of change in positions that you have hadfor ex-
amplethe change in the 1964 Civil Rights Act, you concluded
later was a good thing.
And concluded that your 1971 view was better than the view ex-
pressed in the 1968 "Fortune" article.
Those, in the past at least, prior to the changes, have in the
minds of some of us resulted in an original view that you had, that
some of us findand even you findone you no longer accept.
For example, on freedom of speech. That at least the provocative
statement was enough to cause some of usyou have pulled away
from that bright line you tried to draw, at least theoreticallyto
get upset. At least it got me upset.
And in the course of these hearings, there have been someI
would say they are close to revelationsregarding your views on
the equal protection clause, underlying equal protection, the advo-
cacy of civil disobedience under the first amendment, and now
there seems to some of us a change in your view on precedent.
I am not doubting you changed, but it seems as though you have.
And all this leads me to believe that as we debate this 200-year-old
document, and we are still on the same fundamental debate, that
is, the role of individuals and the rights of individuals relative to
the majority and to government generally.
And you have indicated you will apply your underlying princi-
ples in concluding how to vote on cases, and some of usI, for
onethink that the underlying principles are principles that will
not because there is any malevolence on your part, not because you
personally believe the conclusions should be what it would be
force you to conclusions with which I have strong disagreements.
698
The tension between the individual and the government has been
a debate that has focused the attention of every generation of
Americans for 200 years, and each generation, as I see it, has with
the exception of the brief period in the Lochner era, has expanded
those rights, those individual rights relative to the Government,
relative to economic power.
And it seems to me that that battle is going to continue, and that
the Court will have to play a very pivotal role as to whether or not
the Constitution embraces the expansion, the continued expansion
of individual rights.
And I want a Court that continues to mature in the way in
which I think society is maturing. Society now recognizes, and the
Court protectsand I am sure you will agree it shouldmy 6-year-
old daughter's right to think about being President of the United
States, which was a preposterous notion 50, 70, 100 years ago.
She has as much right to think about that as she grows up as my
two sons do. Our society recognizes that in our complex world there
are almost as many divorced people as there are married people,
and maybe we should evolve the right, the constitutional marital
right, the constitutional right of a parent, whether married or not,
to see their child.
The Court protects art, for no other reason than it is art. No
other reason. Just because it ennobles us. It raises us up. It makes
us laugh. It makes us cry. It has no relationship to anything else.
Just simply because it is there.
Just simply because it makes us feel good. Simply because it is
provocative, even though it has no relationship to any political con-
text, no relationship to political speech or political discourse.
And Judge, with notable exceptions, at least in the first instance,
based on your writings, you and I have ended up at a different
point, a different spot. And I would like to go back now, and I say
that by way of trying to explain why I think some peopleand I,
from reading the press, although I have tried not to do that too
much the last 2 daysreading the press, there is this question
raised about whether you have flipped or changed, or moved.
And so I do not ask this, and I hope you take me at my word. I
do not ask these questions that I am about to asknone of them
are going to be sharp questionsI do not ask them for any other
reason than trying to make sure I am able to mesh what has been
said.
So if you will give me a few minutes here, and I am going to give
you all the time in the world to respond.
I would like to start withI realize we have been over it several
timesthe equal protection clause. Now, the equal protection
clause, as the Court has looked at it in the recent pastand by
that, I mean the last generation or so; actually, the last 60, 80,
maybe 90 yearshas gone through mild, at leastI think we
would acknowledgechanges.
Now, you have statedand I think you are rightthat the core
principle in the equal protection clause, the 14th amendment, was
race; that was the core principle. Yet, there are various tests that
have grown up. One was, as we spoke about, and Senator Specter
spoke at length about, and Senator DeConcini, the strict scrutiny
test, which basically says in matters of race, you had better have
699
an overwhelming reason to make a distinction. And I am not using,
as my son would say, "lawyers' language" here; I am just trying to
make it as colloquial but accurate as I can, so that I understand it
as well as everyone else.
Then the Court in the Seventies began to apply an intermediate
scrutiny test. That fell somewhere between strict scrutiny and the
rational basis test. The rational basis test is a lot looser, as we both
acknowledged, so that if in fact a legislative body had any rational
basis to make the distinction that was being made, then the Court
would usually uphold it. But the Court started to play around.
They wanted to expand, as I view it, expand rights. And they
began to apply this intermediate scrutiny testnot as tough as
strict scrutiny, but not as easy as the rational basis test.
And then Justice Stevens said he did not like all these catego-
ries. He said there should be one test, basicallythe reasonable-
ness test.
Now, it seems to mealthough I do not take issue with Justice
Stevens coming up with thatthat that is almost a totally subjec-
tive test; that reasonablenessmy dear mother, God bless her
and I hope she was not taking the quote from anyone elseand she
probably did"What is one man's meat is another man's poison,"
or something like thatshe gets them mixed up, like I do.
Judge BORK. Yes, yes.
The CHAIRMAN. SO reasonableness to Senator Specter may not be
reasonableness to me, and reasonableness to me assuredly would
probably not be reasonableness to Senator Humphrey because we
disagree so much on things.
But it is very subjective, as I read it. And yesterday, you saidI
am flipping, changing, a little bit here now, because I am trying to
figure it outyou said, when there was a lot of questioning about
your article on neutral principles, which is now on the best seller
list, you said the part that did not make much sense anymorethe
part that should not be looked to so much anymoreis the second
half. It was basically two halves.
Judge BORK. Oh, the second half is all right, Senator. I did not
mean to disavow it.
The CHAIRMAN. Oh, no, no, no. I did not mean that. The second
half is where you try to draw a bright line. But the first half, you
saidand I will not go through all the quotes; you have said it as
late as 1986 and 1987let us just stick with the first half of that
article.
Now, you sayand I think, to your credit, you are one of the few
people of late who has tried to come up with a constitutional con-
struct. Some of the law and economics folks have done the same;
your colleagues, Mr. Posner, and Mr. Easterbrook have attempted
it, and Mr. Winter, and others. But you sayand I quote"But
this resolution of the dilemma"the Madisonian dilemma you talk
about with great eloquence"imposes a severe requirement upon
the Court, for it follows the Court's power is legitimate only if it
has and can demonstrate in reasoned opinions that it has a valid
theory, derived from the Constitution, of respective spheres of ma-
jority and minority freedom. It does not have such a theory, but
merely imposes its own value choice, or worse, if it pretends to
have a theory, but actually follows its own predilections, the Court
700
violates the proposition of the Madisonian model that alone justi-

fies its power, and then necessarily, abets the tyranny either of the
majority or the minority."
Now, that is a very eloquent and, I think, compelling, statement.
I can think of no test that would more violate the principle that
you set out here than the reasonableness test, which is totally sub-
jective. I think we both have to acknowledge that a judgeand I
am not considering you conservative, liberala judge can go any-
where he or she wants under that test. What is reasonable to me
may be totally unreasonable to Senator Humphrey, and what is to-
tally unreasonable to him may be reasonable to me.
Now, what I am trying to figure out is how you could possibly
adopt such a subjective test as Justice Stevens has and particularly
since there is nothing that I have found in any of your prior writ-
ings, any of your prior speeches, anything you have ever said prior
to this hearing starting, that you adopted the Stevens standard.
That is the question.
Judge BORK. Okay. Let us go intoit is going to take a little
while.
The CHAIRMAN. Please, take the time you need.
Judge BORK. I can think of no test that is perhaps more subjec-
tive than a reasonable basis test than the intermediate scrutiny
test that the Supreme Court now uses. As a matter of fact, I re-
member I was once arguing a case in the Supreme Court, and
somebody said what about strict scrutiny. And I said, well, if you
say strict scrutiny, the case is over. And one of the other Justices
said that is right, it is a conclusory term; we say strict scrutiny
when we intend to strike it down.
In the past, they have said rationality when they intend to let it
stand up. Intermediate scrutinynobody quite knows what that
means. It goes all over the place. It is highly subjective. And I do
not think the reasonable basis test is that subject, but one could
argue about which one is more subjective. But unless you are going
to compelling all the way, or unless you are going to let it stand all
the way, there is an element of subjectivity that cannot be avoided.
The CHAIRMAN. I agree, but why, then, based on neutral princi-
ples, why didn't you stick with the less subjective standard, which
we all thought you had? You understand why guys like me, after
reading, I think, all you have written, would logically conclude, as I
think Senator Specter did in the beginning, logically conclude that
your test in applying thewhen you said, for example, that activ-
ism tends to trivialize the Constitution, for example, once the Court
expands the equal protection clause beyond the subject of race,
standards for demanding equality are blurred, et cetera
Judge BORK. Where is that?
The CHAIRMAN. I am sorry. We have quoted so many timesthe
1974 Mayflower speech; and then you did a similar thing at the
that was when you were Solicitor General.
Judge BORK. Yes.
The CHAIRMAN. The only point I am making, and then I will
stopyou see, what confuses us is that obviouslyI say obvious-
lyI believe, obviously, the rational basis test is less subjective
than the reasonableness test.
701
And we all thoughtcorrect me if I am wrong, Senators Specter
and DeConciniI think we all thought that you applied and
thoughtyou did not like any of it.
Judge BORK. I do not like the multi-tier, group-by-group ap-
proach.
The CHAIRMAN. Well, I understand that. But doesn't it make
sense in line with neutral principles and in keeping judges from
wandering over the landscape to have the most objective test you
can; and isn't the rational basis test more objective?
Judge BORK. NO. The rational basis test, if it is the lowest of the
three tiers
The CHAIRMAN. Yes.
Judge BORK [continuing]. That is more objective only in the sense
that it allows everything to be done; I mean, it just does not strike
any laws down.
The CHAIRMAN. That is right, but isn't thatlet me stick with
that, nowisn't the embodiment of what you write
Judge BORK. NO.
The CHAIRMAN [continuing]. That majoritiesthat the Madison-
ian principle, in fact, says, as you read, as I read what you have
said about it, the Madisonian dilemma is resolved by you by saying
that, look, the only circumstances in which minoritiesa minority;
I do not mean that in terms of racea minorityhave rights is
whenand you have said this in your articles, and I will para-
phrase, I will not go and find the quoteis when those rights are
delegated to them by the majority. And the Constitution, really,
isn't that a gathering of the majority to enshrine in the Constitu-
tion what rights minorities will have; and that is why you have to
look at the textual context of it, right?
Judge BORK. That is right. The Constitution was a greatthe
Bill of Rights, at leastwas a great moment in which a super ma-
jority passed a self-denying law.
The CHAIRMAN. Right.
Judge BORK. And that self-denying law has now been spread
from the federal government to the State governments.
The CHAIRMAN. NOW, let me stop you there, too. You see, there is
the crux of your and my disagreement.
Judge BORK. But I want to get back to this question of the
The CHAIRMAN. NO, no, I knowI will let you get back to it, but
I want to make this point. The crux of our disagreement is I do not
believe they were self-denying. That is why I think the 9th amend-
ment meant something.
You see, I think thatand I want my friend from Wyoming to
understand why I am having a disagreement herethat I think
that the majority did not grant anything. What the majority did
was acknowledge some of those rights that we automatically had
that predated the Constitution, predated anything, predated the
Declaration of Independence.
Now, back to this point. I understand you. I just want you to un-
derstand why we do not understand what appears to us to be a
change on your part.
Judge BORK. Well, can I address this question of that?
The CHAIRMAN. Yes, please.
702
Judge BORK. As we have sat here, I have discussed with you

some things where I have changed my mind, such as the bright
line test applied to explicitly political speech. I have also said to
you that there are areas where I have not changed my mind, and
that is where we get into discussions, because you do not like the
fact that I have not changed my mind, but I have not.
There are also areas where I have said I haven't changed my
mind, or else I haven't thought about it again and maybe I would
think the same thing I said before if I thought about it againI
don't know. But I accept it as settled law as a judge.
Now, to accept it as settled law as a judge is not to change your
mind.
The CHAIRMAN. IS this one of those areas?
Judge BORK. Which?
The CHAIRMAN. Equal protection clause?
Judge BORK. Yes, let me go to that, the equal protection clause,
because I think it's important to understand where you get. The
Court started off with this group-by-group businesssome groups
don't qualify, others do. I think that's
The CHAIRMAN. Excuse me, don't qualify under certain tests?
Judge BORK. TO be covered.
The CHAIRMAN. TO be covered by certain tests.
Judge BORK. Yes, they get at most a rationality test. And the ra-
tionality test, as I pointed out in this
The CHAIRMAN. They all get covered, just in different ways,
right?
Judge BORK. Well, yes, but this rationality test led them to say
that women couldn't be licensed as bartenders unless they are re-
lated to a male proprietor, and so forth. It just isn't much of a test.
But, passing that, I think the Court got off on the wrong foot be-
causeand we are going into an arcane area againperhaps be-
cause they adopted the approach of what is known as Footnote 4 in
the Carolene Products case, which says we must protect discrete
and insular minorities. And that was minorities who are small,
don't have much contact or connection with the rest of the society,
and aren't big enough to vote.
If you approach the equal protection clause in that way, I take it
women would not be covered, because women are not a discrete
and insular minority.
The CHAIRMAN. Because they can vote.
Judge BORK. Women would not be covered if you are talking
about discrete and insular minorities. But I think this group-by-
group approach, each group with a different standard, intermedi-
ate, etcetera, is really intellectually incoherent. And let me pause
right here and saybecause I forget to mention itthe subjectivity
of a reasonable-basis approach is no greater than much of constitu-
tional law, and all the doctrine of neutral principles means, is not
that we have an automatic rule; it means that the judge should
honestly say, if I decide this case on these criteria, then I must
decide any other case that has the same criteria the same way.
The CHAIRMAN. That's why it is so subjective, Judge, because in
the 14th amendment you are not applying all cases by the same
rule.
703
Judge BORK. No, I knowI am describing to you what the theory

of neutral principles, as laid down by Herbert Wechsler, was,
which I was trying to follow in this article.
The CHAIRMAN. YOU moved on a little bit from there.
Judge BORK. What?
The CHAIRMAN. I said you moved on from
Judge BORK. He was talking about application, and I said why
shouldn't you use it in definition and in derivation.
The CHAIRMAN. That's right.
Judge BORK. But this group-by-group approach, in which some
groups get really no protection because they call it "rationality"
and away we go, I think is wrong, because a lot of groups that are
now covered in one way or another would never be covered if you
went back to what they were aiming at.
The CHAIRMAN. Which is they were aiming only at race, right?
Judge BORK. Well, that was sure the core of it, but let me tell
you this, if you are doing an original-understanding approach to
the Constitution, the surest guide, the first guide, the first thing
you turn to, is the text, and the text of this thing says "nor shall
any person be denied equal protection of the laws." That I think
means that you don't say maybe they were thinking about blacks,
former slaves, and so forth, but they stated a principle that's broad-
er. And we'll come to it in a minuteI'm not so sure they were
thinking about thatmaybe, I don't know. The language and the
history suggest that this group-by-group approach is misguided.
Now, yesterday I think I mentioned Congressman Bingham who
was the drafter of the equal protection clause, and when he was
speaking to the Congress in support of it he said "Is it not essential
to the unity of the government and the unity of the people that all
persons, whether citizens or strangers within this land, shall have
equal protection in every state?" And then there was Senator
Howard, a member of the committee that drafted the 14th amend-
ment, and its manager on the floor, on the Senate floor, and he
said "The equal protection clause abolishes all class legislation in
the states and does away with the injustice of subjecting one caste
of persons to a code not applicable to another."
So my point is I think it's more faithful to the language, and at
least to what Senator Howard and Congressman Bingham said, to
say, look, this thing applies to all people, it applies to any person;
there is no reason to say this group gets this scrutiny, this group
gets this scrutiny; it is much easier to say we are going to ask
whether a distinction made between persons is a reasonable way to
accomplish a valid legislative purpose. Now, that means that the
law is going to change over time, that is, understanding of reason-
ableness changes over time in the society. But that is true of our
understanding
The CHAIRMAN. DO you keep strict scrutiny in your test?
Judge BORK. YOU get the same result as strict scrutiny, but you
don't start with strict, intermediate, and
The CHAIRMAN. SO for you there is only one test, not strict, but
just reasonable.
Judge BORK. That is right. That is what Justice Stevens suggest-
ed I think with a great deal of merit.
704
The CHAIRMAN. Let me offer an alternative, not that I expect you

to accept it, but again so we understand our differences.
It seems to me under the neutral principles article, and how you
have articulated it in many other fora, you would not come to the
conclusion you did for the following reason. You would conclude
that all men, if you are not going to make distinctions among class-
es of persons, that they would all be viewed as protected.
Judge BORK. They are.
The CHAIRMAN. Wait a minutein the same way that did not
allow for the legislative bodies to make distinctions, a little bit like
the ERA.
Judge BORK. Not allow legislative bodies to make any distinc-
tions?
The CHAIRMAN. Correct. If you are going to move the route of ap-
plying neutral principles, you either do it that way or you begin to
make classifications. But to end up with a reasonableness test, it
seems to me that you may very well find, although you state it
can't, nowyou may find that there are distinctions being made
further down the road on reasonableness based upon alienage.
Judge BORK. Yes.
The CHAIRMAN. Based upon being handicapped. Based upon
maybe even race, if you abandon the strict scrutiny test.
Judge BORK. Oh, no, no, Senator.
The CHAIRMAN. Why couldn't you?
Judge BORK. Because
The CHAIRMAN. What would happen if it were concluded under
your rationale, as related to the propensity to communicate dis-
ease, that genetically one race carried the gene more than another
race and a court came along and made that distinctionI mean, a
legislative body made the distinction.
Judge BORK. And what do they do?
The CHAIRMAN. Well, they decide that, for example, there is
going to be automatic testing for one group of people, which, by the
way, worries a lot of people. You see, when I talked to you before
about the future, it's not very far off the horizon that if we don't
get one disease under control, you may find legislative bodies
taking whole classes of people based upon propensity of conduct to
say we are going to put you in a certain category, we are going to
demand mandatory testing for you.
Judge BORK. I am not going to try to decide cases of the future
as
The CHAIRMAN. NO, no, I just want you to continue to philoso-
phize a little.
Judge BORK. Well, I am talking aboutfor example, it is now the
settled consensus that there is no basis for distinguishing between
racial groups.
The CHAIRMAN. But it's settled consensus that they make that
judgment based on strict scrutiny. You are abandoning that test.
Judge BORK. There is no reasonable basis to make a distinction
between the races, if you will, Senator.
The CHAIRMAN. Well, I happen to agree with you, but you aban-
don the test they use.
Judge BORK. Justice Stevens has abandoned it and arrived at all
the same results.
705
The CHAIRMAN. When did you adopt Justice Stevens' view?

Judge BORK. I don't know, I
The CHAIRMAN. I never heard it until this
Judge BORK. Well, I haven't been writing about the equal protec-
tion clause.
The CHAIRMAN. I knownot necessarily in your writings; I
mean, have you ever adopted it anywhere before? I mean, I've
never heard it before.
Judge BORK. It's not in writing, but, you know, we've discussed
all these cases in class. And when I first started talking about it, I
was saying they ought to give the rationality test some teeth, and
decide these cases differently. That in a way was starting into a
reasonable-basis test, because a lot of these cases I discuss hereon
page 12 of my Indiana article, Kotch v. Board of River Port Pilots
you can't get a license unless you are related to a river boat pilot;
Goesaert v. Clearya woman can't get a license as a bartender
unless she's the wife or the daughter of a male owner; Levy v. Lou-
isiana, and so forththere are all kinds of cases that that classifi-
cation system just hasn't protected anybody.
The CHAIRMAN. Concluding on that same page 12, you said:
"There is no principled way in way anyone can define the spheres
in which liberty is required and the spheres in which equity is re-
quired. These are matters of morality, of judgment, of prudence.
They belong therefore in the political community. In the fullest
sense, they are political questions."
Judge BORK. That's right. And I'm talking about Professor
Wechsler's remark about Justice Frankfurter in cases where they
had to decide about a political question, and therefore wouldn't, or
where they decided about liberty and equality, and therefore
wouldn't. If you use concepts like that, you are into the question of
morality and prudence and so forth.
What I'm trying to say is
The CHAIRMAN. Aren't we into that with "reasonableness"?
Judge BORK. What you are going to do is look at this thing and
sayyou know, we discussed Reed v. Reed in which a statute said
that a man had to be preferred to a woman as an administrator of
an estate. Nobody can think of a reason for that; it's an outmoded
stereotype.
We discussed the Cleburne case, I think using the reasonable-
basis test. Justice Stevens struck down a law that disadvantaged
retarded people.
The CHAIRMAN. But how about if we get into cases that are more
likely to occur? I am not asking for your judgment. We get in a
case where we say it's not reasonable for the army to make a dis-
tinction between whether or not a woman can fly an F-15 and a
man can fly an F-15. I'm sure, I guarantee you there are people in
this body who will say that's a very reasonable distinction, women
shouldn't be up there flying those F-15's.
Judge BORK. That's right, you are going to have to decide cases
like that, and there is going to be evidence about whether a certain
kind of strength is required, biological function, and so forth. You
know, that can't be avoided. If you are going to get into this, you
get into the same thing with intermediate scrutiny; you don't get
706
away from anything with intermediate scrutinyyou are into the

same business.
The CHAIRMAN. But what you are doing when you move offand
I will move off this subject nowbut when you move off the ration-
al-basis test, at least in the rational-basis test, although I admitI
think the reason the Court went to intermediate scrutiny is be-
cause the rational-basis test didn't get them where they wanted to
go.
The CHAIRMAN. They wanted to reach out. And so the rational-
basis test was more restrictive in fact, and that's why they went to
intermediate scrutiny. Now, you are coming to reasonableness, and
all of us thought, based on your writings, you would be at interme-
diate scrutiny, and we are quite frankly wondering whether or not,
because your wholeeverything you have written about this clause
is, one, you'd like to see it viewed more restrictively.
Judge BORK. NO, no, I said that if you are going to use this
group-by-group approach, once you get beyond race and race-like
things, then you are making political choices about which group
gets which scrutiny.
The CHAIRMAN. SO a business does not get any more scrutiny, the
chemical industry gets no more scrutiny than a woman?
Judge BORK. NO, no. I would thinkyou know, I am now launch-
ing into areas where I have never worked.
The CHAIRMAN. We are accustomed to that up here; it's our job.
Judge BORK. I know, but I don't want to start making state-
ments
The CHAIRMAN. YOU don't want to be a Senator.
Judge BORK [continuing]. That are going to haunt me. But in eco-
nomic rights the Court has generally, I think, supposed that inter-
est group politics was at work and they didn't examine it too close-
ly. Whether that's a correct result or not, I don't know.
The CHAIRMAN. Let me move to another area. Unfortunately,
there's much more to talk about thatand I appreciate your will-
ingness to engage me on this. The tape with your statement that "I
don't think in the field of constitutional law precedent is impor-
tant" and your comments yesterday in response to questions, raise
some issues about precedent. And today you made a distinction
that I'd like to pursue.
Judge BORK. Before we get off that tape, Senator, I would like to
say this: you have in your hands speech after speech and interview
after interview where I have said some constitutional decisions are
too embedded in the fabric of the nation to overturn.
The CHAIRMAN. And, to the best of my knowledge, you have only
used two examples ever.
Judge BORK. Well, I was trying not to get into trouble by saying
too much.
The CHAIRMAN. I understand, I understand. I just want to make
sure. Now, I don't want to go back to the tape. I want to go
Judge BORK. But you mentioned the tape, and I
Senator SIMPSON. Mr. Chairman, it's untoward of me, but I
would like to hear him finish, that he address it. I don't want to
stay here all night, but
The CHAIRMAN. I am just trying to hurry the thing up.
707
Senator SIMPSON. I would like to hear a full response to either a
question or a multi-question that is directed at himI really
would. And I will stay here as long as you wish.
The CHAIRMAN. Please go ahead.
Judge BORK. One of the problems, Senator, is that you move from
topic to topic, and I don't get a chance to discuss either the
The CHAIRMAN. Please go back to any topic you want to discuss,
I'm sorry.
Judge BORK. That particular tape I made the distinction between
precedent in the statutory context and precedent in the constitu-
tional context, and gave the reasonand that is an utterly accept-
ed distinction by everybody.
The CHAIRMAN. That's all I wanted to talk about.
Judge BORK. That is the only time in all of these interviews and
speeches where I didn't say: and there are some constitutional deci-
sions that are too embedded, too late to overturn. And to make
something out of that in a question-and-answer period strikes me
as ridiculous.
The CHAIRMAN. I'm not.
Judge BORK. I know.
The CHAIRMAN. If you had letif I had gone through, I could
have saved us that. This is one time if I had said the whole thing it
would have saved timeall I want to talk about is the distinction
that you enunciated today' between constitutional questions and
how precedent affects those, and legislative decisions and how
precedent affects those.
Now, I want to make sure I understand what we mean by, what
you mean by constitutional as opposed to legislative cases. For ex-
ample, Brown Shoe v. United Statesyou are obviously familiar
with the case. That's a statutory case, correct?
Judge BORK. Well, yes, sir, but you have got a very unique stat-
ute involved there. If you deal with the antitrust laws, as the Court
has said many times, you are dealing with open-textured statutory
provisions much like the Constitution, and in fact you are dealing
with a large delegation from Congress to the courts to deal with
competition.
The CHAIRMAN. Let's start at the other end. Shelley v. Kraemer
is a constitutional case.
Judge BORK. Right.
The CHAIRMAN. Baker v. Carr is- a constitutional case.
Judge BORK. Right.
The CHAIRMAN. Katzenbach is a constitutional case.
Judge BORK. Yes.
The CHAIRMAN. Again, I'm not going to go through them all, I'm
not trying to be argumentative. I just want to make sure that I un-
derstand.
Now, it is obviouslyI shouldn't sayyour distinction, constitu-
tional versus statutory, is drawn, as it has been by many others, to
suggest that when it is constitutional, precedent is more binding.
Judge BORK. NO, quite the contrary.
The CHAIRMAN. Oh, I see.
Judge BORK. The reason for the distinction given by Justice
Brandeis, Justice Douglas, everybody who talks about it, is that if a
court reads the Social Security Act incorrectly, if a court reads the
708
Mann Act incorrectly, Congress can correct the court instantly: it
can pass a statute saying we didn't mean that, do it this wayno
problem. If a court misinterprets a fundamental profound provision
of the Constitution, Congress cannot change it.
The CHAIRMAN. Like the Griswold case.
Judge BORK. Right, like the Griswold case, like Brown v. Board
of Education, like any case you want to choose.
The CHAIRMAN. I'm with you.
Judge BORK. Congress cannot change it. That means, as every-
body has said, the Court should be more willing to rethink a consti-
tutional decision because only the Court can correct the mistake,
nobody else can.
The CHAIRMAN. That's a point I thought I was making.
Judge BORK. YOU said precedent meant more in constitutional
cases than it did in statutory cases, and the reverse is true.
The CHAIRMAN. YOU are exactly right; I misspoke. So that in the
constitutional cases, those are the areas where the Court can go
back, because if they don't go back and correct a mistake, no one
can correct it.
Judge BORK. Yes.
The CHAIRMAN. None of us can pass a law changing Shelley,
changing Griswold, changing Katzenbach, unless we pass a consti-
tutional amendment, because there is a constitutional principle in
there.
Judge BORK. Yes.
The CHAIRMAN. NOW, you then go on, as you've heard a hundred
times todayagain, I'm trying to get this outyou sayand
you've said, and I forget which speech, but you will remember it
when I say it, if you don't, well, I'll dig it upabout how an origin-
alist judge would have no problem overruling an non-originalist
precedent because that precedent, by its very basis of a judicial phi-
losophy, has no legitimacy. Or the statement you made earlier,
which is: I don't think in the field of constitutional law precedent
is all that important.
Judge BORK. I know, but in the second speech you readthat's a
Federalist Society speechthat particular remark was scribbled
into the margin, as you know, because you have the notes from
which I spokeand in the very next paragraph I go on to say of
non-originalist decisions on the commerce clause, that it's too late
to overrule them.
So there was never a case except that one question-and-answer
period at Canesius College when I said then you make the point
that you can't overrule something.
The CHAIRMAN. Okay. I am not saying you can't. Let me get to
the last point.
Judge BORK. I know. But you shouldn't cite that Federalist
speech because
The CHAIRMAN. Okay. Let me back off then and go on. If it is
a
Senator THURMOND. Did you finish, Judge?
Judge BORK. I think so, Senator. Thank you.
The CHAIRMAN. If it is a constitutional principle involved, the
Court, if it believes it has made the decision wrongly, can and
should overrule it, unless it has become settled doctrine.
709
Judge BORK. I gave thewell, of course Plessy v. Ferguson, sepa-
rate but equal, was settled doctrine.
The CHAIRMAN. But the pointin other words, the point I am
trying to make is to make sure I understand you. You say that
when a court made a mistake on a constitutional principle, that a
judge, if he believed it was a mistakea Justiceshould come in
and overrule it unless
Judge BORK. There are a lot of factors.
The CHAIRMAN. Unless it is a commerce clause, unless it isyou
know
Judge BORK. NO. There are a lot of factors. I have listed them all
for you already. Unless private expectations have grown up around
it, people have internalized the right; government institutions, pri-
vate institutions have grown up in reliance upon it, and so forth
and so forth.
The fact is the Supreme Court, I am told, has overruled about
250 constitutional cases in its time.
The CHAIRMAN. I am sure it has, which gets me to the last point
on this. Back to your dozens of cases
Judge BORK. Oh.
The Chairman [continuing]. That should be overruled.
Judge BORK. Reconsidered, I think I said.
The CHAIRMAN. Reconsidered. Excuse me, reconsidered.
Now I am trying to figure out the reason why a lot of people are
concerned is because the cases whereand I will make the state-
ment and you respond, please. You have made, by your own admis-
sion, and by the admission of those who are for you and again you,
provocative statements about dozens of cases.
You haveI wouldn't say dozens. At least a dozen ormaybe 20
that I can think of.
Judge BORK. I have what?
The CHAIRMAN. YOU have made provocative statements.
Judge BORK. Oh.
The CHAIRMAN. Let me go through the whole thing, so you un-
derstand what I am getting at, so I am not in any way misleading
you.
You started offthe reason why there is some concern on my
part, at least, is you say there are dozens of cases that should be
reconsidered. Some of the dozens of cases may be some of the ones
you have written aboutwe don't know. Some of the ones you have
written about, if you mean they should be reconsidered, scare the
living devil out of some of us, like me.
If you think that you should reconsider the rationale, the ration-
ale in Griswold, it worries the devil out of me. If you mean you
think you should reconsider the rationale in Roe, it worries a lot of
other people. If you mean you consider the rationaleand I can go
down the list.
Now you have said that you know what those cases are, at least
in your quotes, these dozens, and yet you have come back and you
have made, at least you have left the impression with me that the
precedent is so binding generally that you are really not going to
go look at any of these cases.
710
So you have Orrin Hatch reading a list of all these cases that we
have raised as concerns, as if to say: Isn't it ridiculous, Judge? You
would never reconsider those cases. So there is a dilemma here.
Judge BORK. There are some I would reNo, I have never told
you that I am so bound with precedent that I am not going to re-
consider any case. Of course, it would take a lot of Justices to re-
consider a case.
The CHAIRMAN. NO, I understand that.
Judge BORK. And I have never said I am so
The CHAIRMAN. But not the principle, because the principle
might come back up.
Judge BORK. I beg your pardon? I didn't understand "the princi-
ple."
The CHAIRMAN. The principle in the case. You are not going to
go back and reconsider Griswold; no. But the principle embodied in
Griswold is likely to come up again somewhere along
Judge BORK. It may. It may. A number of cases may come up in
various fields that the Court may wish to reI think the Court last
term overruled four cases at the end of the term, something like
thator maybe during the term. You have to think about it. You
have to be careful what you do. You have to know what effects you
are causing on people, and so forth, and on settled expectations.
But it happens.
The CHAIRMAN. YOU tell us, not cases, but principlesconstitu-
tional principlesyou think warrant being reconsidered by the
Court and you would feel obliged to reconsider as a judge. Just the
principle, not the case.
Judge BORK. Well, I don't think I should go into that any more
than I have already gone into here, which has been quite a bit. I
mean, I have discussed my problems with various kinds of reason-
ing in some kinds of cases, and I think I have gone about as far as I
should go.
The CHAIRMAN. Okay. Let me finish up with the one principle,
constitutional principle, that still really disturbs me in terms of not
being fully embraced, and that is what was referred to, I have been
referring to as the marital right of privacy.
Judge Bork, there has been a lot of discussion, by me mostly I
guess, about that issue with you. So to make the facts clear, you
and others have basically said, that in the Connecticut case, the
Griswold case, Connecticut made it a crime for a married couple to
use contraceptives. But there is another part of the law that made
it a crime to give couples or anyone else information and advice
about contraceptives. And the executive director and medical direc-
tor of a birth control clinic were arrested because they examined a
woman and prescribed a contraceptive.
The Supreme Court found that the criminal laws were unconsti-
tutional. Now they inferred with a right ofexcuse ofthey inter-
fered with the State by talking about this right of marital privacy,
which Douglas, as you have gone into detail about, disagreeing
with, said was older than the Bill of Rights.
Now I have got a real simple question. With the views you have
now, had you been sitting on the Court, how would you have ruled
on that case?
711
Judge BORK. It is quite clear. I think marital privacy is a right
older than the Bill of Rights, and that is why it has always been
respected. Even in Connecticut, they didn't enforce that law
against married couples and they had a terrible time, the Yale pro-
fessors did, getting these doctors arrested.
But passing that, it is a right deeply built into our society, and
no doubt about it. But, if I were sitting on the Court and Justice
Douglas circulated that essay about emanations and penumbras re-
sulting in a generalized right of privacy, which is wholly undefined
and we don't know where it will go nextno, I would not have
agreed to that opinion.
Marital privacy is a very important thing. And if a case came up
in which I had to think about a constitutional principle, I would
think very hard because it is so important. However, if when I was
finished thinking I could make no legitimate constitutional case, I
would not make a decision that was not justified by the Constitu-
tion.
The CHAIRMAN. Let me conclude with a letter I received from
Harriet F. Pilpell, for Katherine G. Rohrbach and herself. I assume
she is an attorney with
Judge BORK. I know them.
The CHAIRMAN. Okay. I don't know her.
Judge BORK. Well, there are two women there.
The CHAIRMAN. Okay. She says:
Dear Senator Biden. On behalf of Katherine G. Rohrbach
Am I pronouncing it correctly?
Judge BORK. I believe so.
The CHAIRMAN [continuing].
And myself, I write this letter to clarify the legal situation as it existed in Connecti-
cut prior to the decision in Griswold v. Connecticut. There is a decision of the Con-
necticut Supreme Court of Errors, dated March 6, 1940, a copy of which is enclosed.
You will note that there was a prosecution of two doctors and a nurse in violation of
the Connecticut statute against the use of contraceptives.
The case did not go beyond the highest court in Connecticut; however, as a result
of this decision, nine Planned Parenthood clinics which had been providing contra-
ceptive services until they were closed, remained closed until the decision of the
United States Supreme Court in Griswold v. Connecticut in 1965. During the inter-
vening period, efforts were made to bring the question of constitutionality of the
Connecticut statute to the U.S. Supreme Court. Although the Court did not review
in two cases prior to Griswold, they decided against the opponents of the statute on
technical grounds.
In the second of such cases, there were dissents from the denial to pass upon the
statute by a leading conservative Justice and leading liberal Justice. Both Justices
Harlan and Douglas dissented in separate findings, stating that in their view the
Connecticut statute violated a basic constitutional right of privacy, a position which
the majority of the Court adopted later in Griswold, in 1965.
The citation of State v. Nelson Godrich, etc., are 126 Conn. 412
Well, I won't go through that.
The citation of the third case
I will skip that, too.
Katherine Rohrbach represented the Planned Parenthood League of Connecticut
from 1955, and I have represented the Planned Parenthood Federation of America
since 1940. From 1940 until the decision in the Griswold case, no birth control serv-
ices were available to Connecticut women who could not afford the price of a pri-
vate physician.
712
The whole point being very clear, Judge. That that case, as at
least these two attorneys argue, the reason they wanted the test
case was the Planned Parenthood outlets had been shut down by
the 1940 case, and poor women couldn't get contraceptives but
wealthy women could.
Judge BORK. I don't think that is true that poor women couldn't.
But, anyway
The CHAIRMAN. At least not through Planned Parenthood.
Judge BORK. I said to begin with when we started this that the
only way they enforced the statute was against birth control clinics
that operated in the open. That is right.
The CHAIRMAN. But they weren't operated in the open. That is
why they didn't enforce it
Judge BORK. NO, no. But now we have shift
The CHAIRMAN [continuing]. They were closed down.
Judge BORK. NOW we have shifted from the marital bedroom to
the question of whether they are dealing with birth control clinics.
The CHAIRMAN. I see.
Senator SIMPSON. Mr. Chairman, I think that there is a distor-
tion there that needs to be cleaned up. He said, if I recall, and I
just want to get the record correct, that there had never been a
case brought on the issue of the bedroomthe right to privacy, the
marital right. That which you read has something totally different
from that.
I happen to be a bigI think Planned Parenthood is a remarka-
ble organization. I have put my money and my other efforts into
helping them. But, for Heaven's sakes, that doesn't have anything
to do with this issue. That doesn't have anything to do with it.
The CHAIRMAN. Well, you and I will get a lot of chances to
debate that on the floor. But, go ahead, Judge.
Judge BORK. Also, I should say that in Poe v. Oilman, which was
the predecessor case, the one in which Justice Harlan relied I
think not upon a right of privacy, but upon a right derived an or-
dered liberty concept, the majority in that case said we haven't
been shown and we can't see that this law is ever enforced against
anybody, and they had to go back down and get somebody arrested
and come back up.
The CHAIRMAN. Okay. My last question, and it is kind of a reiter-
ation. You have indicated you wouldn't have voted with the majori-
ty in Griswold. Would you have voted with the minority in Gris-
wold?
Judge BORK. If I had not seen a better argument than the one
that Justice Douglas offered, I would have joined Justice Black,
Hugo Black, and Justice Potter Stewart.
The CHAIRMAN. Have you ever seen a better argument?
Judge BORK. I have never looked at an argument from that area,
again.
The CHAIRMAN. I tkank you very much, Judge. We were going to
break anyway and there is a vote on. We will break now for 10
minutes, and then we will finish up. Thank you very much.
[Recess.]
The CHAIRMAN. Judge, we are getting down to the wire here. We
are going to finish tonight and we will, if we are required to, go
much more than another hour and a half or so. We will break very
713
hour from now on, to make sure there is some time. I assume it is
your preference to finish up tonight as well.
Judge BORK. It is very definitely my preference, Mr. Chairman.
Senator LEAHY. I might note for some of us at the far end of the
table it is our preference, if the Judge is able, too. I want to go
back home tomorrow and see my family.
Senator Specter?
Senator SPECTER. Thank you very much, Mr. Chairman.
Judge Bork, I want to turn to a subject on the finality of Su-
preme Court decisions in terms of interpreting the Constitution.
This picks up a somewhat broader subject than Marbury v. Madi-
son. There has been some discussion of Marbury v. Madison, not a
whole lot.
There are some prominent people in our country today who
appear to be questioning the finality of Supreme Court decisions.
One Presidential candidate flatly questions the finality of the Su-
preme Court decisions, saying, as I understand his comments as
printed in an extensive article in the Washington Post that the
President has authority to interpret the Constitution, that the Con-
gress has the authority to interpret the Constitution, as co-equal
branches, notwithstanding what the Supreme Court of the United
States has said.
There has been a statement made by Attorney General Edwin
Meese which borders on that conclusion. Attorney General Meese
may not have intended to reach that conclusion as he addressed an
op-ed piece to the Washington Post after a speech he made at
Tulane on October 21, 1986.
But I believe that this raises the most fundamental question for
the Supreme Court and for the Constitution, and it is a question in
my judgment of enormous importance. And Attorney General
Meese said this:
But as constitutional historian, Charles Warren, once noted, what is most impor-
tant to remember is that "however the Court may interpret the provisions of the
Constitution, it is still the Constitution which is the law, not the decisions of the
Court." By this, of course, Charles Warren did not mean that a constitutional deci-
sion by the Supreme Court lacks the character of law. Obviously, it does have bind-
ing quality. It binds the parties in a case and also the executive branch for whatever
enforcement is necessary, but such a decision does not establish a supreme law of
the land that is binding of all persons and parts of the Government henceforth and
forever more.
Now what troubles me about this statement is that Attorney
General Meese appears to be giving support to what Charles
Warren says; that even after the Supreme Court has made a deci-
sion it is the Constitution which is the law, suggesting some differ-
ence from what the Court has said. And then, Mr. Meese's own
words, saying that the Supreme Court decision has a binding qual-
ity for the parties in the case, and also the executive branch for
whatever enforcement is necessary, suggesting that the Supreme
Court decision does not bind beyond that range.
My question to you is do you agree with what Attorney General
Meese has said?
Judge BORK. Well, I am not quite sure what it means, Senator,
but let me say this. He started off that somebody said that the Con-
gress and the President can also interpret the Constitution, which
714
is quite true. When the Congress decides to pass a statute, it
mustit should, since they have taken an oath to defend the Con-
stitution, think about the constitutionality of what it proposes to
do. When the President is about to act, he shouldshe should, if
we should have onethink about it, too; and usually he gets advice
from the Office of Legal Counsel about the constitutionality of
what the President proposes to do.
But having done that, the Supreme Courtthe courts and ulti-
mately the Supreme Court, are the final determiners of what the
Constitution is. But when the Court decides a case, I think as Abe
Lincoln said in his debates with Steven Douglas about the Dred
Scott decision, he has no desire to challenge that decision or say
nobody is bound by it, but you are free to go back and ask the
Court in a future case to change its mind.
And I think that is true for a while. Professor Herbert Wechsler,
I think it was, who said that you can ask the Court to rethink until
it becomes clear that it is settled, and when it is settled, it is set-
tled. And this ties into, of course, the discussion we have had about
precedent and respect for it. Courts can rethink, but it may be, as I
have said before, too late to rethink for a variety of reasons.
Senator SPECTER. But you would agree, then, that a Supreme
Court decision has more of a binding quality than simply on the
parties to the case and on the executive branch to enforce that spe-
cific decision?
Senator SPECTER. And unless there is an appeal and a change in
the Court's decision, that such a decision does establish a supreme
law of the land that is binding on all persons and all parts of the
Government.
Senator SPECTER. Judge Bork, I want to turn now to a statement
you made in Barnes y. Kline, which has been the subject of some
discussion as to standing. But in your enumeration of the powers of
the President, you said this in your dissent, at page 55 of the opin-
ion: Itreferring to the Constitutionquote, was to allow room
for the evolution of the powers of various offices and branches, that
the Constitution's specification of those powers was made some-
what vague. The framers contemplated organic development, not a
structure made rigid at the outset by rapid judicial definition of
the entire subject as if from a blueprint."
There, obviously, you treat executive powers as a blueprint in
the Constitution with a fuller statement to be developed as organic
law.
Why not such a similar interpretation for the Bill of Rights?
Why the necessity to find a specific constitutional right as a pre-
requisite for dealing with State legislative action?
Judge BORK. For this reason, Senator. I said specifically the only
time I got into a debate with my colleagues over thisand the col-
league I was having the debate with was Judge Scaliawas in the
Oilman case, where I found a column protected by the first amend-
ment. And as I explained there, there will be an evolution of the
Bill of Rights as new threats to the freedoms guaranteed develop
whether those threats are developments in legal doctrine, as in
libel law, or threats coming from technology, or whatever it is; and
715
you do have an organic growth. And there is a lot of freedom in
that. I mean, these are questions of degree and questions of judg-
ment, which is why you need judges and not just read the Constitu-
tion.
But I do not think that I can ever justify a judge putting a free-
dom or value in the Constitution that the framers or the ratifiers
in no way contemplated. Now, they did not contemplate the cir-
cumstances, so you may get an evolution for that reason. They did
not contemplate future developments, so you may get an evolution
of a value that is in the Constitution. But I think they have to put
the value there.
Senator SPECTER. But in your quotation in Barnes v. Kline, when
it comes to executive power, you allow for growth. In your opinion
in Oilman v. Evans and Novak, where Judgenow JusticeScalia
criticized you as going beyond the intent of the framers, you did
expand the constitutional right, and your opinion in Oilman v.
Evans and Novak might be said to have some similarities to Jus-
tice Douglas' opinion in Griswold v. Connecticut. That is an articu-
lation by a judge of a constitutional right which at least Justice
Scalia said was not within the intent of the framers.
Now, why not that as a general principle of constitutional law?
Judge BORK. In Oilman, I had a constitutional freedom specified
in the Constitution, and the question was what it takes to protect
that freedom, and I evolved that. Justice Douglas did not point to
any freedom or value specified in the Constitution, and I think that
is the difference between the two cases.
Senator SPECTER. Well, liberty is in the Preamble of the Constitu-
tion. You have objected to an interpretation or a specification of
liberty rights in your writings on Meyer v. Nebraska and Pierce v.
Society of Sisters, but why not liberty in the very Preamble of the
Constitution as a basis for privacy in Griswold v. Connecticut?
Judge BORK. Senator, I think the reason for that isand you can
use liberty in the 14th amendment; it speaks of no person may be
deprived of life, limb, or liberty without due process of law
Senator SPECTER. Well, I do not pick that one up because it is due
process, which you have objected to. That is why I picked the fun-
damental of liberty from the preamble. But take liberty either
place. It is a cherished value; it is the cornerstone of the Constitu-
tion. It seems to me very rationalas rational to say that privacy
is derived from liberty that liberty implies privacy, as it does to say
that freedom of the press implies the Evans-Novak rights which
you found in the Oilman case..
Judge BORK. Well, the difficulty, I think, Senator, is that if I
decide that I am going to protect liberty, just in general, not with-
out any specific provision of the Constitution, then I have noobvi-
ously, I cannot say everybody is free to do whatever they want to
do, and no statute may exist because it interferes with liberty; we
cannot have anarchy. So then I have to define what libertiesI
have to define it without guidance from the Constitutionwhat lib-
erties people ought to have and what liberties they ought not to
have.
Now, that is exactly the effort I engaged in for about 6 or 7 years
in that course on constitutional theory that I thought with Alex
Bickel. And I became convinced that it was an utterly subjective
716
enterprise and that I was running my values into what I was
coming up with. I do not knoweach of us may have a different
idea about what liberty requires. And if we have no guidance from
the Constitution itself, it is just the judge legislating the Constitu-
tionyou know, if a judge said, "I think I will enact a statute," we
would all recognize that that was improper. But a statute, I assume
Congress could repeal. If a judge legislates the Constitution, I think
the situation is far more serious, and I do not want judges, includ-
ing me, going around, saying, "You have this liberty, you do not
have that liberty," and I cannot explain why I got it.
Senator SPECTER. But why should you be as free to find addition-
al executive powers, as you say you can in Barnes v. Kline, moving
from a blueprint?
Judge BORK. Let me see what I said.
Senator SPECTER. YOU said the Constitution's specification of
those powers was made somewhat vague
Judge BORK. Yes
Senator SPECTER [continuing]. That the framers contemplated or-
ganic development. Why not organic development for liberty? Why
only organic development for executive power?
Judge BORK. But it is not executive power; it is also congressional
power. There has been an organic development of congressional
power, too, in this country.
Senator SPECTER. All right, all right. This really focused on exec-
utive power. But take it as you have articulated itwhy organic
development for congressional or executive power, but why not or-
ganic development for people power, defined as liberty?
Judge BORK. Well, there is one decisive difference between you
and me, Senator Specter, and that is you were elected; I was not.
And if the people do not like what you are doing with respect to
liberty, they have a cure. If they do not like what I am doing with
respect to liberty, they have no recourse.
Senator SPECTER. YOU were not elected when you decided the
Oilman case.
Judge BORK. That is right. But I had a constitutional provision, a
constitutional liberty, specified for me, and I was empowered to do
my best to ask what is required in this case to protect that free-
dom.
Senator SPECTER. Well
Judge BORK. NOW, I do not mean to say that judges do not have
latitude, and they may not decide different things differently. But
at least I knew that I had a constitutional liberty with a lot of Su-
preme Court decisions about how broad that liberty was supposed
to be, with a history of our country, and I could decide it. But I
could not go off and say, well, I will take the first amendment and
decide a case about minimum wage laws.
Senator SPECTER. But Judge Bork, in the tradition of our law,
and as the Supreme Court has interpreted the decisions, including
Holmes and Black and Frankfurter, there are traditional expan-
sions of liberty very much within the framework that you articu-
late in Barnes v. Kline and that you applied in the Oilman case, in
terms of the contours of the law which do not have any more speci-
fication.
717
For example, Frankfurter, whom you characterized as one of the
stars of the Supreme Court, had this to say in Roshin v. Califor-
niaand I hope to take up with you some criminal law cases at a
later time and some of the due process considerations generally,
but it fits in right herethis is what he said in citing tradition
from Cardozoand it might be worth just a moment of explanation
to say that Roshin was a criminal law case where police officers in
California broke into a person's house and pumped his stomach,
and the Supreme Court suppressed the evidence and found for the
defendant in the case. And Frankfurter quotes Cardozo as saying
there are values, quote, "so rooted in the tradition and conscience
of our people as to be ranked as fundamental"language which is
very close to what your colleague Professor Bickel used. And then
Frankfurter says, "The vague contours of the due process clause do
not leave judges at large.' That is what you are concerned about.
And Frankfurter goes on and says, "We may not draw on our
merely personal and private notions and disregard the limits that
bind judges in their judicial functions. Even though the concept of
due process of law is not final and fixed, these limits are derived
from considerations that are fused in the whole nature of our judi-
cial process." And he refers to Cardozo's "Nature of the Judicial
Process", one of the most famous law books ever written, that I
know you are familiar with.
Now, that is the contour of the interpretation of the law. That is
the contour you follow in Oilman. That is the contour you articu-
late in Barnes v. Kline. Why not a similar contour for liberty?
Judge BORK. Because, Senator, I can do anything with the con-
cept of liberty which is unstructured. I can reach any result I want
to. For example
Senator SPECTER. YOU can do that pretty much with freedom of
the press.
Judge BORK. I have to be talking about a press case, and I have
to be talking in terms of the kinds of categories that have been
built up in libel cases in the past, rhetorical hyperbole and so forth;
actual malice, all that. There is a whole structure there.
Now, we should remind ourselves that there was a time when
the word "liberty" in the 14th amendment was used by judges to
strike down social reform legislation. They struck down minimum
wage laws in the name of liberty; they struck down laws in the
Lochner case, law regulating the hours that bakers could work.
They went through social reform laws very fast, in the name of lib-
erty, and struck them down. And I cannot say they are right or
wrong about liberty. I can say they were wrong because they were
using a concept to reach results they liked, and the concept did not
confine them, and they should not have been using that concept.
Senator SPECTER. Judge Bork, I do not think the Supreme Court
has to be right all the time. The question is what are the powers of
the Court.
Senator SPECTER. The Court has a consistent tradition, starting
with Fletcher y. Peck, where Chief Justice Marshall talks about
values rooted in the conscience of the people, which moves away
from the specific language of a particularized right, so that you
have a very long history in the Constitution of the United States,
86-974 0 - 8 9 - 2 5
718
of constitutional interpretation, which does not require a particu-
larization of a specific right.
Judge BORK. I think in Fletcher v. Peck, if memory serves, the
statement by Marshall was somewhat ambiguous. He refers to the
nature of society, that maybe there is something in the nature of
society. But in any event, he did not use that nature of society in
that casedidn't he use the contract clause?
Senator SPECTER. He used the contract clause, and he also used
the language which is more generalized, and this is what Fletcher
v. Peck held. And when you say it is vague and generalized, I
would not disagree with that. You can say that about most of the
Supreme Court decisions, with all due respect. But he says this, at
page 139 of the opinion: "If a State is neither restrained by the
general principles of our political institutions, nor by the words of
the Constitution, from impairing the obligation of its own con-
tracts, such a defense would be a valid one."
Well, that is fair to read as an alternative holding to freedom of
contracts or to the "general principles of our political institutions".
So you go back to 1810, with Marshall, in Fletcher v. Peck, on the
power of the court again and again and again.
And I grant you that the Lochner decision is a bad one. And I
think the Court is going to come to bad decisions. But a more fun-
damental issue for me is what is the power of the Court to do; and
if you restrict the power of the Court to an articulated right, then
you very much limit, as I see it, the tradition of the Court.
And I see in your own writing, Barnes v. Kline, when you deal
with executive and congressional power, and it raises a question
which I would like your comment on, a question raised by others,
as to whether there is not a broader expanse as you interpret law,
Judge Bork, if it comes to Congress or if it comes to the executive,
as contrasted with the interpretation of law as it relates to the in-
dividual, that individual liberty.
Judge BORK. Well, I do not think so, Senator. I hate to say what I
have said before, but the fact is I have decided some constitutional
cases, I have decided first amendment cases, and found for individ-
ual liberty. I decided a double jeopardy clause case just the other
day and found for individual liberty. There is no problem that way.
My only problem is I do not want to be a free-floating legislator of
constitutional law; I just do not.
Once a judge gets to the point where he says he is allowed to use
the concept of liberty to do whatever he thinks liberty requires,
then in a nomination hearing like this, that judge should be asked
to make campaign promises about what he thinks liberty requires
in specific instances, so that you would be satisfied he is going to
do the right thing.
And we have been proceeding on the assumption, which I think
is quite correct, that I should not be asked to make promises about
particular cases. But if I am free to decide liberty, then you ought
to ask me what I am going to do about the minimum wage law.
Senator SPECTER. Judge Bork, I would not ask you what you are
going to do about the minimum wage law, just as I would not ask
you about what you are going to do about the abortion case.
719
Judge BORK. No, but that is only because you think I am con-
fined by some principles and not free to make up liberty as I see
fit.
Senator SPECTER. NO, because I do not think that you ought to be
asked about a specific case; but I think it is fair to ask you about a
generalized principle, and I think it is fair to ask you about the in-
terpretation and the structure of our constitutional government.
And I think that you have moved considerably in your statement
about equal protection not being limited only to race. And I intend
to talk to you later this evening about your interpretations of the
antitrust law, because there, you take the Congress' words, and you
feel very free to disregard them, at least
Judge BORK. Oh, no, oh, no, Senator.
Senator SPECTER. Well, let me pick that strain up
Judge BORK. All right, but I would like to get on the record right
now that I do not feel free to disregard what Congress decided.
Senator SPECTER. Well, let us pick up the antitrust strain in just
a minute or two and focus continuing on this issue about the tradi-
tion of the Court to make interpretations, as you suggest for Con-
gress and the executive in Barnes v. Kline, and as you have in
Oilman, in terms of what the Court has done in other matters, and
as to what has been written.
Alexander Bickel, to whom you refer again and again, has writ-
ten on the subject, and has talked about the leisure and the insula-
tion of judges, a quotation that you refer to many, many times in
your speeches.
Judge BORK. Because once I became a judge, I though it was a
funny concept of a judge's life.
Senator SPECTER. Well, there is less insulation if you are a Su-
preme Court nominee, at least during the confirmation process
Judge BORK. There is also no leisure on any court these days.
Senator SPECTER. Well, perhaps more leisure than legislators
have.
Have you had an all-night session on the court of appeals that
runs to 6:30 in the morning, Judge Bork?
Judge BORK. NO, I have not.
Senator SPECTER. We have them with some frequency.
Judge BORK. Well, I guess I picked the right Branch. [Laughter.]
Senator SPECTER. But the point that Bickel makes, and the point
that so many Supreme Court Justices have made, and the point
that the Constitution makes on life tenure is the insulation; and
that gives a Supreme Court Justice perhaps a little more courage
except, perhaps, for Senators who have repetitive profiles in cour-
agebut the history of our country has been that the Congress has
refused to act, and the executive has refused to act. And you were
quoted as saying that Plessy v. Ferguson had ceased to be equal
with being separate in the 1920's, 1930's and 1940's, and it took
until the 1950's for the Supreme Court to decide the case. And
there has been a reliance by the people of this country on the
courts as a refuge when they cannot get legislative bodies to act
because of unwillingness to face the kinds of tough decisions or ex-
ecutives, because the other side of the coin of being elected is that
there is a tremendous inertia and unwillingness to face problems,
and the insulation that judges have has provided the tradition, and
720
the tradition of the Supreme Court of the United States, to make

good faith interpretations in an expansive way.
And that is really what I am looking to, because I think that is
the tradition of the Court.
Judge BORK. It is, and I could not agree with you more. But you
mentionedI guess I should say somethingyou mentioned Justice
Hugo Black as being in this tradition you described. I think he was
not. Justice Hugo Black was constantly complaining about the nat-
ural law approach to the Constitution, and I think he dissented, in
Rochin v. California, on precisely that ground, that this shock the
conscience of the Court business is a natural law
Senator SPECTER. He wanted to put it on specific grounds in the
Bill of Rights as a privilege against self-incrimination and unrea-
sonable search and seizure. He did not avoid the problem
Judge BORK. NO.
Senator SPECTER [continuing]. And when the crunch came, on
Boiling v. Sharpe, on the District of Columbia school desegregation,
Justice Black was with the majority on desegregating the schools
on due process grounds, so that when the crunch came, Justice
Black was willing to use due processeven though there was no
specification.
Judge BORK. Yes, he read an equal protection component in. I do
not want to name names, but there were judges who later had
second thoughts about that decision.
Senator SPECTER. Well, Justice Black did not read an equal com-
ponent in it so far as that opinion was concerned; he did not write
any concurrence. He simply followed Chief Justice Warren's opin-
ion. There was no equal protection read into it as far as Justice
Black was concerned.
Judge BORK. Well, I think the opinion said that due process also
has components of equality, and that has been taken since to mean
that there is an equal protection component of the due process
clause. Well, I have filed briefs that way, and I seem to win cases
that way.
Senator SPECTER. Well, you may file briefs that way, Judge Bork,
and I will send for the opinion again; I thought you and I had fin-
ished discussing Boiling v. Sharpe.
Judge BORK. Well, I do not think there is any point in going back
over whether it incorporates an equal protection standard or not,
but that is my understanding.
Senator SPECTER. Well, the opinion by Chief Justice Warren is
pretty flat, that it is a due process consideration, and it is a matter
of fundamental fairness, and he does not find equal protection ap-
plicable to the federal government. On the contrary, he says we
have to write this opinion separately, because so far as the States
are concerned, equal protection applies. But so far as the federal
government is concerned, there is no equal protection clause; there-
fore, there has to be a separate opinion, and it is put on due proc-
ess grounds.
And Justice Black goes along with the opinion of the Court. He
does not file a concurrence.
Judge BORK. I should say, Senatoryou said Justice Black was
not afraid to face the problem in Rochinnor would I be. And it
721
seems to me the most likely thing to do is what Justice Black did,
and that is place it on fourth amendment grounds.
The use of a stomach pump is a terrible way to punish somebody.
It is a very painful process and should not be allowedat a mini-
mum should not be allowedunless there is a determination by a
judge that there is such probable cause to think this fellow swal-
lowed the cocaine that you can use it.
Senator SPECTER. Judge Bork, I think it is fine for you to do jus-
tice in Rochin without the due process clause if you can find it.
Now the question is how are you going to do justice in privacy
cases without the due process clauseif you can find an alterna-
tive, that is fine. But what I am looking for and what I think the
tradition of the Court has been is not to be hidebound by being
able to find a specific right if it comports to fundamental principles
rooted in the conscience of our tradition, which is the Cardozo lan-
guage, or fundamental considerations of fairness. And in the
nature of the judicial process that we have had since 1810, Fletcher
v. Peck, there is that really well-established tradition.
Judge BORK. Well, Chief Justice MarshallI hate to keep inter-
rupting, but a point goes by, and I do not want to not get a chance
to say something
Senator SPECTER. Okay.
Judge BORK. That kind of language never appeared in the Mar-
shall Court after that; it just died out.
Senator SPECTER. SO what?
Judge BORK. Well, I think they became nervous about it. But the
point I wanted to make about Cardozo and Palko v. Connecticut
and the concept of ordered liberty was a much narrower and less
dynamic form of judicial decisionmaking than the right or privacy
cases are.
Senator SPECTER. Judge Bork, there is a continual line of analy-
sis in your writings, too
The CHAIRMAN. Senator, would you make this the last line, and
then we will come back to you? You have a little more time.
The CHAIRMAN. YOU have a few more minutes. I just wanted to
let you know.
Senator SPECTER. All right.
Judge Bork, I was starting to comment about a strain in your
writing about the Constitution responding to the demands of the
peopleand here again you refer to Bickel with some frequency
and that if the Court makes a decision that does not have popular
support, it will change; or if the Court makes an opinion which
does have substantial minority opposition, in the absence of some
majority support, it will change. And you made an interesting com-
ment in the League of Women Voters publication, this year, 1987,
where you said, talking about the evolution of constitutional doc-
trine, referring to Supreme Court Justices, quote, "Furthermore,
they are screened through a Senate Judiciary Committee, which
has become, I think, increasingly sophisticated"one of your com-
ments which may not draw any objection from this panel"a
Senate Judiciary Committee, which has become, I think, increas-
ingly sophisticated; that what is at stake are constitutional issues.
722
So in the long run, the Constitution is not merely what the judges
say it is, but what the people want it to be."
Now, if a Constitution can be influenced by a sophisticated
Senate Judiciary Committee and can be responsive to what the
people want it to be, then why the harsh constricture that a right
has to be specified before you would interpret it through a very im-
portant American value?
Judge BORK. For this reason, Senatorbut the right does not
have to be specified; some rights and powers are inferred from
structure and so forth; I mean, it does not have to be specified en-
tirely.
Senator SPECTER. That is part of my problem. That is an articula-
tion that you agree with, but you limit it, even when you come to
what so many people think are really fundamental values.
Judge BORK. Well, I agree they are fundamental. I am now
trying to recallwhat exactly was II am sorry.
Senator SPECTER. The question is that if the Constitution has suf-
ficient flexibility to respond
Judge BORK. Oh, I remember now.
Senator SPECTER [continuing]. To what the people want it to be,
and a sophisticated Judiciary Committee, et cetera.
Judge BORK. I do not think, Senator, that by that I mean that
the Constitution has built into it flexibility for judges to keep re-
sponding to the people, because if they did that, of course, the Bill
of Rights might disappear when the people are pretty sore.
What I meant isand I think I have said it beforejudges unfor-
tunately are mortal, which I find increasingly disturbing, and if
there is a political pressure in the society for certain results, as
there was in the New Deal to expand the commerce power beyond
what the Court was currently willing to let it be, the Court cannot
forever withstand that strong political pressure, if for no other
reason than that Justices die and retire, and the President will
nominate somebody whose views are more expansive about the
commerce clausewhich is precisely what happened in the New
Deal era. And the Senate will confirm them, and you will get a de
facto change in the Constitution, not because the document is flexi-
ble, but because human beings come and go.
Senator SPECTER. IS that bad?
Judge BORK. Probably not. In a way, one could wish that we had
done what Canada did. As I recall, the judges up there were frus-
trating similar social legislation in a way that ours were, and
Canada amended their Constitution. I wish we had done that.
But good or bad, it is inevitable, the kind of development I de-
scribed.
Senator SPECTER. We will return to the subject.
Thank you very much, Judge Bork.
The CHAIRMAN. Senator DeConcini?
Senator DECONCINI. Thank you, Mr. Chairman.
Judge Bork, it has been a long day, and I am sure you will be as
happy as we will when it is over. I have a number of questions, and
rather than belabor and stay here for several hours, I am going to
ask the chairman if he is going to entertain submitting some of
those questions to you, because I know there are other members
723
who would like to have an opportunity to talk to you, and I know

you would like to have it finished today.
The CHAIRMAN. Without objection, any question that any
member wishes to submit rather than ask, I am sure the Judge
would be delighted
Senator DECONCINI. Yes, fine.
Judge BORK. In a wayI do not mean to be unpleasant or any-
thing, Mr. Chairman, but in a way I would rather write an answer
to a question right nowjust in the interest of getting home and
getting some dinner; that is all.
Senator DECONCINI. Yes, sir. If I went through the questions, it
would take a couple more rounds, I think. As Senator Specter has
pointed out, there are a lot of unanswered questions and a lot of
them that you have answered for methough I may not agree
with them, you have answered them, but some I do agree, or at
least I am satisfied.
I am concernedand this is really not addressed to you; it is ad-
dressed more to the White Houseone of the records that have
been put together regarding your record on the circuit court is in-
teresting, and I have read it, and I do not know if you approved it,
but it points out some pretty good statistics on reversals and how
many cases you have handled.
But Judge Bork, can you tell me if any of the majority opinions
which you wrote have ever been considered by the Supreme Court?
Judge BORK. I do not know, I really do not know. I did not put
that stuff together.
Senator DECONCINI. I did not think you did.
Judge BORK. And I did not even read it, because there comes a
point in this process when you cannot bear to read anything more
about yourself. But I do not know
Senator DECONCINI. I do not think there is. And it is okay. That
does not disqualify you by any means. But I think it is most mis-
leading on that, because it indicates that so many of your cases
have gone up, that you have written something on, and that your
opinions have been adopted. But in fact, if I am correct, not one of
the cases where you wrote the majority opinion has been consid-
ered by the Supreme Court.
Judge BORK. Well, it may be. And one reason for that is a lot of
them have been petitions for certiorari, petitions to review my
opinions, and they have been denied.
On the other hand, I think it has been pointed outand these
are not my numbers; somebody's numbersthat I have written a
number of dissents, and I think in each case
Senator DECONCINI. Yes.
Judge BORK [continuing]. When I have written a dissent and it
has gone up, the Supreme Court has adopted my position.
Senator DECONCINI. That is correct. And I will go further. Your
supporters in that particular piece of the White House, they cite
only split decisions, and where there was a dissenting opinion by
you. And that is fair enough, but I think it is important for the
record to be clear, because I read that, and as I got into it more
and more, I found outat least I think I found outthat none of
your majority opinions, which makes it a little bit fooling with sta-
tistics, because
724
Judge BORK. Well, Senator-

Senator DECONCINI [continuing]. Wait a minuteit indicates
that this majority position you have taken has not been adopted by
the Courtwell, it has not been considered, so it has not had a
chance to be adopted, not that it might not be.
Judge BORK. Well, yes. And of course, if they deny certiorari, one
supposes they do not find it too outrageous.
Senator DECONCINI. That is right.
Judge BORK. I do not know if any cases in which I participated
but did not write the opinion have gone up. I simply do not know.
Senator DECONCINI. And then likewise, just for the record, yes-
terday we had that list of 100 law professors. I now have a letter
from former Dean Marcus of the University of Arizonawhich
does not say he opposes you, by the wayand I will put it in the
record here, and you will have a chance to see it. It says that he
does not support or oppose Judge Bork. And I think it is important
that the record be as clear and concise as it can be that Dean
Marcus did not want his name used without his permission, al-
though he says in the letter, clearly, taking the view that, "It
would be presumptuous for me to support or oppose Judge Bork's
nomination," and he explains the constitutional reasons.
So without objection, Mr. Chairman, I will ask that it be part of
the record.
The CHAIRMAN. Without objection, it will be entered in the
record.
[Material follows:]
725
THE UNIVERSITY OF ARIZONA

T U C S O N , A R I Z O N A 85721
COLLEGE O F LAW
OFFICE OF THE DEAN
Telephone Area Code 602,621-1498 September 17, 1987
The Honorable Dennis DeConcini

328 Hart Senate Office Building
Dear Senator DeConcini:
Apparently some confusion has arisen concerning my public

statements and position regarding the confirmation pro-
cess currently taking place in Washington. On numerous
occasions I have been asked publicly whether I would
"support" the confirmation of Judge Bork. I have also
been asked my views as to the process which begins with
the Senate Judiciary review of Supreme Court nominees.
On the latter point , as I have written to you previous-
ly, I believe the confirmation process requires a
thorough, but narrow review by the Senate. In particu-
lar, I think that the review ought to include an analysis
of very high standards regarding education, experience,
intellect, judicial integrity and the ability to operate
within the mainstream of American legal procedure and
practice. I do not think, however, that a detailed dis-
cussion of ideology or general philosophy should be the
cornerstone of the confirmation process.
On the former point, I have taken the view that it would

be presumptuous for me to support or oppose Judge Bork's
nomination. Instead, I have focused on the question of
whether he is qualified to serve on the Court. On sever-
al occasions I have indicated thatbased on the evidence
available at the time--Judge Bork is a highly intelligent
and experienced judge, lawyer and teacher. I have always
believed, however, that the resolution of his appointment
was one for the Senate after hearing substantial testi-
mony both from Judge Bork and other interested parties.
Paul Marcus
Dean and Professor of Law
PM/eb
726
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Psul MarcuSy dean of the UA mine bow a candidate will decide
College of Law; said yesterday future court cases..
that the" Senate should confirm "That is an impossibility,'*
tfee appointment of Robert H. Marcus said.
Bark to-the UJS. Supreme Court. He cited Earl Warren, "one of
' ' I t appears at this moment that California's toughest prosecu-
Jt$ge Bork êminently- quali- tors^' who wound up writing the
fied," Marcus said, "although as^ Miranda decision that guaran-
president, I wouldn't have nomi- ' tees., criminal- defendants the
mated bim/\ right of counsel.
Marcusv wha will\testtfy at
Hugo Black, once a conserva-
- Bark's coaflno&tSon hearings In tive senator from Alabama, be-
Washington,. D.C, spoke at a Iunr came an outstanding supporter of
roestlng. of, the Pimav the First Amendment in his years.
J . ' Bepublican Women's'. .on. the Supreme Court, Marcus
J
C l u b . -'- '-
said. Byron White, a close friend
Marcus-said the Senate's re- of Robert Kennedy's, has been
-spons^biJity: \s only to examine a one of the strongest supporters of
judicial ca.td!d*te' education,' President R e s i n ' s appointees,
record and performance as a. Marcus added.'
. lesal practitioner. , . Personally, he said, he dis-
~. " t h e only person who can le- agrees with. Bark "on a host of
iiafi&teljr - consider a judicial issues," Including Berk's narrow
a-.tidid.ate's philosophical views view of the role of the- court in
i? the pi -^Jdmt," M^rcx1* said. "I - protecting individual rights and
b: Ji;ve t>&fs the way the Coasti- liberties. ' -
tutica &^ys it should bs dene." But, Marcus said, Bork has re-
A prtsident always- will- tiy to.. ceived the American Bar Asso-
s- ape the court to his own philo- ciation's highest evaluation as a
sofnJeal Jrosge, Miorus said. judge. The Senate also swiftly
--"Tut the Senile is at ifs vôrst confirmed hira five years ago as
vuea it tries (o uss a court noml- a federal Circuit Court of Appeals
jaatkjfr to fight its own philosophi- judge for the District of Colum-
cal wars Marcus said.. bia,
727
Senator DECONCINI. NOW, Judge Bork, I do have a question that

has been raised, not by me, but by one of your colleagues, Judge
Gordon, regarding a panel that you sat with with Judge Robb. I
only read in the newspaper what some of the clerks said and what
your response was. And I would like to turn to that for a moment.
It relates, of course, to the opinion in Vander Jagt v. O'Neill. And I
am not so much interested in the opinion, because I am really not;
I am interested in the problem that is raised here that you may be
able to clarify completely as to the ethical standard that is used by
judges.
Is it correct to say that, although you had agreed to write a ma-
jority-based opinion on numerous reason, it was agreed that the
opinion would not be based on standing, as clearly stated in the
memorandum from Judge Robb dated March 19, 1982?
Judge BORK. That is entirely true. We were going toI can de-
scribe
Judge BORK. I am sorry.
Senator DECONCINI. NOW, between that memorandum and the
time you drafted the opinion, you apparently had a change of heart
and decided that the opinion should be based on standing; is that
correct?
Senator DECONCINI. Okay. Now, in September of 1982as a
matter of fact, the 17th, to be exactyou sent your opinion based
on the standing issue to Judge Gordon. With that opinion, you did
not attach any explanation for your application of the standing
reasoning; is that accurate?
Judge BORK. That is accurate. I did not
Senator DECONCINI. I am going to let you answer the whole
thing, so you do not have to jumpI just want to lay the case, and
then I will be glad to let you have as much time as you want.
Then, a week later, on September 24, 1982, you sent an explana-
tion letter to Judge Gordon that you had been notified of Judge
Gordon's concern prior to sending the apologetic letter to Judge
Gordon.
Had you been notified of Judge Gordon's concerns before you
sent that?
Judge BORK. I do not recall.
Senator DECONCINI. YOU do not recall. That is fair enough.
Judge BORK. I do not think I even heard from Judge Gordon
until his last letter, sending me his last draft. That is my recollec-
tion.
Senator DECONCINI. Okay. Then, next, on October 1, 1982, you
forwarded a copy of your letter to Judge Gordon to Judge Robb.
Now, is there any reason you let a week go by, or do you recall? I
realize that is 7 years or 5 years ago.
Judge BORK. I have no idea. I do not recall.
Senator DECONCINI. That is fair enough. After receiving a copy
of your September 17 letter to Judge Gordon, Judge Robb respond-
ed by saying he was "surprised" to have your proposed opinion
based on standing, and that he could not agree with the reasoning.
728
In this same letter, Judge Robb suggested that Judge Gordon
prepare an opinion based on something other than standing, as
originally agreed in the conference back in March of 1982.
Then further, on October 8, 1982, you sent a letter to both Judge
Robb and Judge Gordon, and in that letter you characterized your
failure to notify Judge Gordon of your decision to write the opin-
ion, based on a different reasoning than originally agreed to, as fol-
lows: "Inexcusable. I neglected to write to Judge Gordon about my
change of opinion." End of quote. That was in your letter.
Now, it concerns methe doctrines, we could talk about, but
that really is not necessarythere seems to be some question as to
what took place during the period after you agreed to draft the
opinion and the actual drafting. That is not so much the change of
heart that I have a question withI think judges are entitled to
change their minds and to try to convince their colleagues on a
panel to change their mindsbut rather, the way in which you
communicated this change particularly to Judge Gordon.
In your letter of October 8, 1982, you wrote that although you
had spoken to Judge Robb concerning your change in approach,
Judge Robb did not remember speaking to you; did not doubt that
it took place, but was certain that he did not understand what you
say that you had proposed.
Now, is that correct, and can you tell me more about really what
took place so I can have a clear understanding?
Judge BORK. Yes. And I will be glad, if you wish, to prepare a
written submission on this, because this idea that I would try to
get an opinion through first a panel and its clerks, and then a full
Court and its clerksbecause we have a rule that an opinion, after
the panel approves it, has to lie there for 7 daysand if I did
manage to get an opinion through the panel and the clerks and
then the full Court and the clerks, that they would not en bane me
as soon as they found out, makes the whole thing
Senator LEAHY. That they would notI am sorry?
Judge BORK. They would not en bane meto get rid of this opin-
ion. The whole strategy is actually a preposterous suggestion. And
what happened is thisand people remember thiswhat I said in
the letter of
Senator SIMPSON. Could you put that microphone down a little
bit?
Judge BORK. I am sorry. Okay.
I said in my September 24 letter to Judge Gordon what the fact
was; that as I started on the opinion, I thought it was harder to get
the case out under either the political question doctrine or the
speech or debate clause. And the Supreme Court's opinion in
Valley Forge made it easy to dispose of it on standing grounds.
And in addition to that, we had coming up for en bane rehearing
in our court a challenge to the Senate and the House of Represent-
atives' paying of chaplains. The case demanded that you not pay
chaplains any salary on the grounds it violated the establishment
clause. And in the middle of that case was going to be the political
question doctrine and perhaps the speech and debate clause. And I
did not want to publish a panel opinion taking a hard position on
that, and then the en bane thing comes along and maybe wipes out
the rationale I use in this case.
729
So my clerk and IPaul Larkin, his name isdiscussed this, and
I said to him, and he remembers this, that I was going to go up and
talk to Judge Robb about using standing instead. And I did go up,
and we had a long talk. And I am told by Judge McKinnon on our
Court that Judge Robb's secretary at the time remembers me going
up to talk to him about this.
I did talk to him about it, and he agreed with me.
Senator DECONCINI. He agreedexcuse mehe agreed that you
should change the opinion and do it on standing?
Judge BORK. The standing, yes. I said to him, you know, this
Court had a position in Goldwater v. Carter which was vacated by
theI was not on the Court thenwhich was vacated by the Su-
preme Court because it did things on other grounds. But this Court
wrote an opinion on standing in Goldwater v. Carter, I think v/hich
had a majority of the Court, and I said why don't I use that ration-
ale, because it will go by this Court; they will buy it.
And he said all right, and then we had a long talk in his office
about his father being on the Court, and some of the mementos he
had from that.
I went back and told Paul Larkin that Judge Robb had agreed
and we would do it this way. And Judge Gordon was down in Ken-
tuckyI should have written him instantlybut I did not think
there was going to be a flap about it. I mean, it just seemed to me
to be a noncontroversial
Senator DECONCINI. Excuse me. You did not write him whyyou
just forgot?
Judge BORK. Yes, I just forgot, and it did not occur to me. I did
not think it was going to be a big deal. And I was new on the
Court. I should have just automatically sent everybody something;
I did not.
Senator DECONCINI. Did you make any notes of your discussion
with Judge Robb?
Judge BORK. I did not. All I can tell you is that people remember
me going up there to talk to him and coming back and saying it is
okay.
Then I sent the opinion out, and then I forget whethermaybe
one of Judge Gordon's clerks said to my clerk something about it,
and maybe I wrote Gordon for that reason; I do not know. But in
any event, we went ahead, and I wind up writing a concurring
opinionyeswith them, saying it is a standing case. And they
were saying, well, it is really an equitable discretion case.
Now, this equitable discretion concept is one of considerable diffi-
culty. It exists nowhere but in our circuit. What it says is if we find
that there is standing, then
Senator DECONCINI. I do not need to know the case. My concern
is the procedure which you are going through, really. I do not need
to go into cases. I guess the questionand you answered it fair
enough, that you forgot to advise the third panel member of what
you remembered was the change of heart or change of decision on
the part of Judge Robb.
Judge BORK. Well, more than that. The third panel member
never complained to me about this until the other day. He did not
complain to me then; he wrote a letternever a word that any-
thing had been funny about this.
730
Senator DECONCINI. Well, when you sent the opinion to him, he
complained, Judge Gordon, did he not?
Judge BORK. Not to me. I do not think I have ever heard from
him. No, I have no
Senator DECONCINI. He did not accept the opinion. He got hold of
Judge Robb. You did not know that he got hold of Judge Robb?
Judge BORK. NO, I did not, I did not.
AnywayI am not sure about that, even, because I do not think
I heard from Judge Robb until after I sent Judge Robb the copy of
my letter to Judge Gordon. Well, anyway, this is what I got back
from Judge Gordon, with his final draft. He discusses what he has
done to the draft, and so forth and so on, and he would appreciate
it if he could have my law clerk ring up to work on circulating the
opinion and so forth, process the opinion.
And the last paragraph of this letter of December 17th says,
"May I take this opportunity of expressing to you my pleasure in
sitting with you last March, and the making of your acquaintance,
and I wish you and yours a happy and joyous Yuletide season."
That was the only sentiment he expressed to me from then until
now.
Senator DECONCINI. That is Gordon, that is Gordon.
Judge BORK. Yes.
Senator DECONCINI. NOW, isn't it true that on October 5th, 1982,
Judge Robb wrote you and Judge Gordon a memorandum, and in it
he said, "Now, I am surprised to have Judge Bork's proposed opin-
ion, holding that the plaintiffs are out of court because they have
no standing to sue. Although I agree with the results, I regret that
I cannot concur in the opinion. I would apply the Riegle theory to
this case. The Valley Forge case relies on it, and the proposed opin-
ion was not a case of the congressional plaintiff, and I see nothing
in it that suggests that the Court would not have approved the ap-
plication of the Riegle theory in a congressional plaintiff context."
Doesn't this refute what you said, that Judge Robb had agreed
with you?
Judge BORK. NO, it does not at all, Senator, because
Senator DECONCINI. Why not?
Judge BORK. Well, he did not remember it. And he did not even
deny that we had met and talked. And other people do remember.
Senator DECONCINI. Are you familiar with this memorandum?
Judge BORK. Yes, I think so.
Judge BORK. But I called Judge Robb when I got this thing and
said, "What are you doing? I do not mind you changing your posi-
tion," because I thought he had changed his position from standing
to the other thing. '^Vhat are you doing?" We talked about this.
And he said, "If you say we talked about it, I will accept that, but I
do not remember it." And that is where it stood.
Judge BORK. But that I did talk about it is quite clear from
people who are still around, who remember it.
Senator DECONCINI. Judge, let me go to one other quick thing
hereI think it will be quickand that is, you have not been
called on as a judge to issue decisions on the first amendment es-
tablishment of religion or the free exercise clause; and I under-
731
stand you have not written a lot about it, although there is a very
controversial speech that supposedly you made to the Brookings In-
stitute on September 12, 1985, when you discussed the Supreme
Court decision in the area.
Are you familiar with the speech?
Senator DECONCINI. Good. You said in part of that speech, "A re-
laxation of current, rigidly secularist doctrine would, in the first
place, permit some sensible thing to be done," end of quote. And
after discussing one particular case, the Aguilar case, you go on to
say, quote, "I suspect that the greatest perceived change would be
in the re-introduction of some religion into public schools and some
greater religious symbols in our public life."
You label this as a political speech, and I will take it as such,
and not as a mandate of a judge discussing a case.
After the Brookings speech, there was the incident where Rever-
end Kenneth Dean, the pastor of the First Baptist Church of Roch-
ester, NY, asked you a question. Reverend Dean, who will be a wit-
ness here next week, says that he told you about an embarrass-
ment and conflicting experience by an eighth-grade boy who was
instructed by his Jewish parents not to read the Bible or lead
prayer in classroom devotions dominated by Christians.
And Reverend Dean says in a news article there, that you re-
sponded, "Well, I suppose he got over it, didn't he?"
In view of that remark, first of all, is that your remark, and sec-
ondly, with the constraints of not commending on how you would
decide religious cases, the establishment cases and establishment
clause, can you give us some idea of what do you believe the
Founding Fathers intended under this clause?
Judge BORK. Well, I want to go back a moment, Senator. I have
not had much experience with this, and in that speech, I said
things no more than most people are sayingI mean, scholars in
the field, and so forth.
And you referred to it as a political speech. It was not a political
speech. It was
Senator DECONCINI. Excuse me. It was not in the sense, I do not
believe, a speech in the sense that you were giving it as a judge.
That is why I said political. I meant it was a non-official judge's
conference of any nature-
Judge BORK. NO. It was religious leaders. They had religious
leaders. And Mr. Warren Cikins, who was the head of the seminar
program
Senator DECONCINI. I was only trying to make the distinction
that you were not standing there as a judge, giving a speech; you
were standing there as an individual, which you had the right to
domaybe I am incorrect, but that is how I read the context of the
speech in the Times Union.
Judge BORK. Well, I discussed this thing, but I am notin the
first place, I do not know that much about the framers' intentions
in the area of the establishment clause, and
Senator DECONCINI. Well, first, do you remember the exchange
with Reverend Kenneth Dean?
732
Judge BORK. No, I do not, and I am certain that I did not say a
thing -like that about "a Jewish boy will get over it." There has
been some discussion of my relationship
Senator DECONCINI. If Reverend Dean said that you did say that,
your answer to that next week is going to be that he is mistaken?
Judge BORK. I certainly am. I do not know what I said, but if I
said anythingit must have been in front of a group. And I earlier
introduced into the record, Senator, letterssomebody also said
that I endorsed school prayer. I do not know what was going on
that night, but I did not endorse school prayer.
I never taught those cases; I never really thought about the prob-
lem, and I certainly did not wait until I became a judge and go
over and talk to an audience about endorsing school prayer.
But I have here two letters that were introducedI will not read
them all through, but I have here two letters. One is from Mr.
Warren Cikins, who was the head of the seminar program and who
kept notes throughout the eveningand he still has his notesand
Mr. Cikins, I should note for this purpose, describes himself as a
devout Jewand he says he finds no reference to any specific Su-
preme Court decision, but only an expression of broad concepts and
principles.
"I find no opinion expressed by the Judge on the issue of school
prayer," and so forth. And these letters are in the record, so I will
not read them all to you.
Senator DECONCINI. I am sure that, without objection, they will
be put in the record.
Judge BORK. And then there is a letter from Rabbi Joshua Ha-
berman, who was there, from the Washington Hebrew Congrega-
tion. This one was printed in the Washington Post. Rabbi Haber-
man was sitting right in front of me as I spoke from the podium,
and he said if he had nothing but the Post's account of the eve-
ning's discussion, "I would draw entirely wrong conclusions about
Judge Bork's views on Church and State issues. Your reporter was
not present at the meeting. I was. As a rabbi, with a strong com-
mitment to the separation of Church and State, I would have been
greatly alarmed if Judge Bork had expressed any tendency to move
away from our constitutional guarantee of religious freedom and
equality. I heard nothing of the sort."
Senator DECONCINI. Fine. Without objection, that letter will
appear in the record.
Judge BORK. All right. But I wish you would go on, Senator, and
readbecause I likeit is so laudatory. I like the rest of it.
Senator DECONCINI. Let me ask you about the establishment
clause, Judge. I know you have not taken up cases on it. What kind
of activities by the Government were meant to be prohibited, in
your judgment, by the framers?
Judge BORK. Oh, I think anythingmy judgmentI have to be
very careful about this, because I have not got a worked-out posi-
tion.
Senator DECONCINI. YOU what?
Judge BORK. I have not got a worked-out position. I never taught
those cases when I was a constitutional law professor; I never
wrote about them. I have read a couple of books since then, but I
have not got a worked-out position.
733
Senator DECONCINI. Well, but it is hard for me to imagine, Judge

Bork, with your intellectual capacity and the experience that you
have had, that you have not thought about this clause and the first
amendment, having done all you have done. But if that is your
answer, that is your answer.
Judge BORK. Well, let me say this. I think it is clearly important
that religion and government be kept out of each other, for the
good of both religion and government.
Now, that gets you into very difficult cases about whether a city
can put a trailer outside a parochial school and have the children
come out for remedial reading, and so forth. That is the kind of
that is where we are operating, on the margin. I mean, there is
no
Senator DECONCINI. Would you apply a strict standard, or a rea-
sonable standard, or what would you apply thereor have you
thought about it?
Judge BORK. NO, I do not think it is a strict standard or a reason-
able standard. I think the question is, given what we know of the
ratifiers' intent, and given the way the precedent has developed,
you have to make adjustments at the margin in every case.
Senator DECONCINI. Okay. Judge Bork, I only say this to you be-
cause I think you have devoted a lot of time to this, and it is very
important to you, as it is to me. I cannot think of a more important
decision that Congress makes than confirmation of all judges, but
certainly, the Supreme Court judges. And I welcome any written
responses you want after you look at this record, because the equal
protection clause bothers me a great deal. We have gone over it
and over it, and I am not going to go over it again.
The right of privacy concerns me. You have responded in some
areas, particularly the Dronenberg case yesterday. I was very con-
cerned about those 10 pages of what I consider philosophizing. I
accept your answer to that, that they were taken up, all of those
points. I have not read that, but I have no reason to dispute you.
Your explanation of the firing or discharge of Archibald Cox, al-
though I do not agree with that, I have no reason to dispute what
you said there.
But I am greatly concerned, as has been expressed by a number
of people on this panel, this committee, and the people that I
talked to, about your inability to find a right of privacy as it re-
lates to the Connecticut case that we have gone over and over here,
either in the ninth amendment or something. And with the out-
standing intellectual capacity that you have and experience, I find
that very difficult, but I accept that that is your positionand also
on the equal protection clause.
I say that to you because it is up to you whether or not you want
to rehash this in writing for me. That is not an assignment, by any
means, and I do not want to leave it with you that that is going to
make the difference. But I am very concerned about it, and I mean
that sincerely. I feel some emotion tied to it. I have two daughters;
one is a doctor, and one is going to be a lawyer. And if they were
truck drivers in heavy equipment, I would feel the same way.
I want to be satisfied not only for my daughters, but for all
women, that they would have really equal opportunity before the
eyes of the nominee. And you have not convinced me of that, al-
734
though you have gone over it a great deal, and if there is anything
you want to add to the record, I will be more than happy to consid-
er it.
I do not make these judgments on one, single issue. I have said
that many times. I would not vote against you or would not vote
for you because you happen to come down on a side that I like, or
disagree with my own value system. This disturbs me, the equal
protection, and
Judge BORK. May I ask, Senator, why it is you think there is
anyI mean, I have a mother and a wife and a daughter, tooand
why it is you think that I might not protect women under the
equal protection clause?
Senator DECONCINI. Well, I find it very difficult, coming from
where you have come from, your very strong views as to the 14th
amendment early on; your acceptance a few days ago, the first
time that I found that you do apply it to womenthat is very posi-
tive. I do not say that critically. Although some will hold you sus-
pect for that, I say, hey, that is positive. Here is a jurist and an
academic, a professor, who is willing to move and expand; that is
good.
Then we get into this argument of the standards that you apply,
and the fact that youand you cite Justice Stevenshave come up
with something new. That concerns me, because this is such a fun-
damental belief that I have in the equal protection clause as it ap-
plies to women.
I am worried about you have a standard out here of reasonable-
ness where all the other judges, including Rehnquist in a couple of
his dissents, used the rational basis, or the intermediate basis, or
on race cases, the strict basis.
Judge BORK. It comes out the same way, but I think it makes
more sense then explaining why the amendment applies to all
people. But on this, you know, I have been teaching those cases in
which they applied the equal protection clause to women before,
and I have never criticized them, never complained about them.
The only trouble with them is they applied the lowest level of scru-
tiny they could find, so that they had these ridiculously discrimina-
tory statutes, which I criticized in class.
There was the case when they say a woman can't be licensed as
a bartender unless her husband owns the place. They applied the
equal protection clause, but they upheld the distinction. Now, I
never complained about applying the clause. All I ever complained
about was upholding the distinction.
Senator DECONCINI. Fine. I just had to share that with you as we
proceed with these hearings and deliberate, and I thank you, Judge
Bork, for your willingness to rehash some of these things for some
of us who haven't been to law school in a long time.
The CHAIRMAN. We will recess, Judge, for 5 minutes and, with
you and I and the ranking member, we will work out the remain-
der of this schedule to, hopefully, everyone's satisfaction.
We will recess for 5 minutes.
[Recess.]
The CHAIRMAN. Judge, you and I and the ranking member and
others have conferred outside, and I am about to announce some-
735
thing that is going to get me in more trouble with the news media
than I have already gotten into this week, and that is that we will
be in tomorrow, but here is the game plan.
Tonight we will go forward with the Senator from New Hamp-
shire, who has 10 minutes; the Senator from Vermont, who has 30
minutes; and the Senator from Wyoming, with 3 minutes. We will
then adjourn for the evening.
Although you and I said we would come in at 10, I would prefer
at 10:30, if you don't mind, so the train will get me down here on
time. That's okay?
Judge BORK. All right, Mr. Chairman.
The CHAIRMAN. We will come in at 10:30 tomorrow. Upon coming
in tomorrow, we will then go to the Senator from Alabama, who
has 30 minutes; then we will go to the Senator from Pennsylvania,
who has 1 hour and 30 minutes; then we will go to the Chairman,
who will have a half hour at his discretion to yield to anyone he
wishes to yield it to or use it himself. The questioning will then
end.
Senator THURMOND. What about our side? You said, the "Chair-
man."
The CHAIRMAN. I still think of you as the Chairman, Mr. Chair-
man. I apologize. You are always my Chairman. I mean to say the
ranking member. Thirty minutes will be yielded towill be in the
control of the ranking member, Senator Thurmond, to assign any
way he wishes.
At the end of Senator Thurmond's 30 minutes, the questioning,
to your great relief, will be over, at which time you will have as
much time as you want, but I understand you want about 5 min-
utes or thereabouts, but do not feel constrained by that, whatever
amount of time you want to make a statement, which I understand
you would like to make.
Then the Senator from South Carolina wishes to have 3 minutes
to make a statement. And although I don't plan on using it, I
would like to reserve up to 10 minutes. No more than 10 minutes.
At the conclusion of my two, threemaybe not
Senator KENNEDY. Ten minutes.
The CHAIRMAN. The Senator from Massachusetts would like 10
minutes tomorrow. To question or to
Senator KENNEDY. TO question.
The CHAIRMAN. SO prior to us going to the half hour, finishing
off with the Senator from South Carolina, we will have 10 minutes,
the Senator from Massachusetts; we will go to a half hour, the Sen-
ator from South Carolina. Questioning will end. Five or more or
whatever you want for your statement. Three minutes for the
statement from the ranking member, and up toI don't plan on
using itbut up to 10 minutes for me. That will end your presence
here before the committee, and we will begin with the public wit-
nesses on Monday.
Senator THURMOND. Not subject to recall by unanimous consent.
The CHAIRMAN. Well, it is hard to get a unanimous consent
agreement since others are not here, and I have no intention of re-
calling you. But I am not going to seek a unanimous consent re-
quest for that at this point. I assure you I have no desire whatso-
ever, much I have learned to enjoy your company, to ask you to
736
come back barring something extraordinary that would happen in

the public witness list.
So I think I canas a matter of fact, I am going to be so bold as
to suggest I will speak for the Democrats on that. The ranking
member speaks for the Republican. That is the deal, and if you can
hang on for what will amount to another 43 minutes tonight, we
will finish for tonight30 plus 10 plus 3.
So I now yield to the Senator from New Hampshire for his 10
minutes tonight.
Senator HUMPHREY. Thank you, Mr. Chairman. I doubt I will
need even that much time.
First, the Senator from Arizona raised some questions about the
significance of whether or not some of the D.C. Circuit Court cases
reaching the Supreme Court on appeal were authored by others
than Judge Bork. I am not going to go into that further because,
frankly, I think it is not a substantial point.
But I would like to put into the record 8 or 10 pages, Mr. Chair-
man.
The CHAIRMAN. Sorry. I beg your pardon. Without objection.
[Material follows:]
737
RE: Statistics Concerning Judge Bork's Record on Appeal

In Cases Where He Wrote or Joined the Majority Opinion
This memorandum reflects a study of the 396 cases in

which Judge Bork either wrote the majority opinion for the D.C.
Circuit or joined the majority. The study looks only at Judge
Bork's record with the Supreme Court. The charts provided below
summarize the results of the study: references to the relevant
cases are provided in the appendices attached hereto.
A. Cases in Which Judge Bork Authored the Majority opinion
Total Cases 117
Cases with no Supreme Court activity 105
Cases in which certiorari was denied 10
Cases in which certiorari was dismissed l
Certiorari granted, awaiting review 1
Cases in which the Supreme Court reversed 0
B. Cases in Which Judge Bork Joined the Majority
Total Cases 279
Cases With no Supreme Court activity 251
Cases in which certiorari was denied 24
Cases in which the Supreme Court affirmed 2
C. Cases in Which Judge Bork Either Wrote or Joined the

Majority
Total cases 396
Cases with no Supreme Court activity 356
Cases in which certiorari was denied or dismissed . 35
Cases in which the Supreme Court affirmed 2
Cases in which the Supreme Court reversed 0

738
APPENDIX A: APPEAL RECORD IN CASES WHERE BORK AUTHORED

THE MAJORITY OPINION
A. gases in Which, Certiorari. Was Denied
1. Telecommunications Research and Action Center v. F.C.C.,

801 F.2d 501 (D.C. Cir. 1986), cert, denied, 55 U.S.L.W.
3821 (U.S. 1987).
2. Three Way Corp. v. I.C.C., 792 F.2d 232 (D.C. Cir.

1985), cert, denied. 107 S. Ct. 573 (1986).
3. Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792
F.2d 210 (D.C. Cir. 1986), cert, denied, 107 S. Ct. 880
(1986) .
4. San Luis Obispo Mothers for Peace v. United States

Nuclear Regulatory Comm'n, 789 F.2d 26 (D.C. Cir. 1986),
cert, denied. 107 S. ct. 330 (1986).
5. Neumann v. Reinforced Earth Co., 786 F.2d 424 (D.C. Cir.

1986), cert, denied. 107 S. Ct. 181 (D.C. Cir. 1986).
6. Norfolk & Western Railway Co. v. United States, 768 F.2d

373 (D.C. Cir. 1985), cert, denied sub, nom Aluminum
Association v. Norfolk & Western Railway Co., 107 S. Ct. 270
(1986).
7. Persinger v. Islamic Republic of Iran, 729 F.2d 835

(D.C. Cir. 1984), cert, denied, 469 U.S. 881 (1984).
8. United States v. Garrett, 720 F.2d 705 (D.C. Cir. 1983),

cert, denied. Garrett v. United States, 465 U.S. 1037
(1984).
9. Black Citizens for a Fair Media v. F.C.C., 719 F.2d 407

(D.C. Cir. 1983), cert, denied, 467 U.S. 1255 (1984).
10. Loveday v. F.C.C., 707 F.2d 1443 (D.C. Cir. 1983), cert.
denied. 464 U.S. 1008 (1983).
B. Cases in Which Certiorari Was Dismissed
1. City of New York Municipal Broadcasting System v.

F.C.C., 744 F.2d 827 (D.C. Cir. 1984), cert, dismissed, 470
U.S. 1084 (1985).
C. Certiorari Granted. Awaiting Review
1. Finzer v. Barry, 798 F.2d 1450 (D.c. cir. 1986), cert-

granted sub, nom Boos v. Barry, 107 S. Ct. 1282 (1987).
APPENDIX B: APPEAL RECORD IN CASES WHERE JUDGE BORK

JOINED THE MAJORITY OPINION
A. Cases in Which Certiorari Was Denied
1. Keener v. WMATA, 800 F.2d. 1173 (D.C. Cir. 1986), cert.

denied. 107 S. Ct. 1275 (1987).
2. Thompson v. Kennickell, 797 F.2d 1015 (D.C. Cir. 1986),

cert, denied 107 S. Ct. 1347 (1987).
3. Block v. Meese, 793 F.2d 1303 (D.C. Cir. 1986), cert.

denied. 106 s.ct. 3335 (1986).
4. White v. Office of Personnel Management, 787 F.2d 660

(D.C. Cir. 1986), cert, denied, 107 S. Ct. 276 (1986).
5. United States v. Vortis, 785 F.2d 327 (D.C. Cir. 1986),

cert, denied. 107 S. Ct. 148 (1986).
739
6. City of Charlottesville v. F.E.R.C, 774 F.2d 1205

(D.C.Cir. 1985), cert, denied, 106 S. Ct. 1515 (1986).
7. Hastings v. Judicial Conference of the United States,
770 F.2d 1093 (D.C. Cir. 1985), cert, denied, 106 S. Ct.
3272 (1986).
8. Quincy Cable TV, Inc. v. F.C.C., 768 F.2d 1434 (D.C.

Cir. 1985), cert, denied sub, nom National Association of
Broadcasters v. Quincy Cable TV, Inc., 106 S. Ct. 2889
(1986) .
9. American Postal Workers v. U.S. Postal Service, 764 F.2d

858 (D.C. Cir. 1985), cert, denied, 106 S. Ct. 792 (1986).
10. United States v. Treadwell, 760 F.2d 327 (D.C. Cir.

1985), cert, denied. Treadwell v. United States, 106 S. Ct
814 (1985).
11. N.A.A.C.P. v. N.A.A.C.P. Legal Defense & Educ. Fund, 753

F.2d 131 (D.C. Cir. 1985), cert, denied, 472 U.S. 1021
(1985) .
12. Oilman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), cert.
denied. 471 U.S. 1127 (1985).
13. Carstens v. N.R.C., 742 F.2d 1546 (D.C. Cir. 1984),

cert, denied. 471 U.S. 1136 (1985).
14. Laffey v. Northwest Airlines, Inc., 740 F.2d 1071 (n.c.

Cir. 1984), cert, denied. 105 S. Ct. 569 (1985).
15. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.

Cir. 1984), cert, denied. 470 U.S. 1003 (1985).
16. United States v. Glover, 725 F.2d 120 (D.C. Cir. 1984),
cert, denied. Glover v. United States, 466 U.S. 905 (1984).
17. Sea-Land Service, Inc. v. Dole, 723 F.2d 975 (D.C. Cir.
1983), cert, denied. 469 U.S. 824 (1984).
18. Naartex Consulting Corp. v. Watt, 722 F.2d 779 (D.C.

Cir. 1983), cert, denied. 467 U.S. 1210 (1984).
19. Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983),

cert, denied. 467 U.S. 1251 (1984).
20. United States v. Weisz, 718 F.2d 413 (D.C. Cir. 1983),
cert, denied, Weisz v. United States, 465 U.S. 1027 (1984).
21. Munsey v. Federal Mine Safety and Health Review Comm'n,

701 F.2d 976 (D.C. Cir. 1983), cert, denied sub, nom Smitty
Baker Coal Co. v. Federal Mine Safety and Health Review
Comm'n, 464 U.S. 851 (1983).
22. Vander Jagt v. O'Neill, 699 F.2d 1166 (D.C. Cir. 1983),
cert, denied, 464 U.S. 823 (1983).
23. Lombard v. United States, 690 F.2d 215 (D.C. Cir. 3982)
cert, denied. 462 U.S. 1118 (1983).
24. Connecticut v. Schweicker, 684 F.2d 979 (D.C. cir.

1982), cert, denied. Schweicker v. Connecticut, 459 U.S.
1207 (1983).
B. Certiorari Granted. Awaiting Review
1. Church of Scientology v. I.R.S., 792 F.2d 153 (D.C. cir.

1986), cert, granted. 107 S. Ct. 947 (1986).
2. Coalition to Preserve the Integrity of American

Trademarks v. United States, 790 F.2d 903 (D.C. Cir. 1986),
cert, granted sub. nom K Mart Corp. v. Cartier, Inc 107 s
Ct. 612 (1986).
740
C. Cases in Which the Supreme Court Affirmed

1. Consumers Union of the United States, Inc. v. F.T.C., 691
F.2d 575 (1982), aTf'd sub, nom Process Gas Consumers Group
v! Consumer Energy Council, 463 U.S. 1216 (1983).
2. National Ass'n of Retired Federal Employees v. H o m e r ,
633 F. Supp. 511 (D.D.C. 1986) (three-judge court), aff/d,
107 S. Ct. 261 (1986).
RE: Statistics Concerning Subsequent History_.With_ Regp^nt-

to Judge Bork's Dissenting Opinions
There are 20 total dissents by Judge Bork, not countiny

dissents in motions for rehearing en bane. This memorandum
describes what, if anything, happened in those cases on appeal.
The results of this study are astounding: the Supreme

Court never disagreed with any of Judge Bork's dissenting
opinions, just as it has never disagreed with any of his majority
opinions.
A. No subsequent history: 10 cases (%50 of total)
1- Catrett v. Johns-Manville Sales Corp,, slip op. (n.C.

Cir. Aug. 7, 1987).
2. United States v. Paddock. Slip. op. (D.C. Cir. Aug. 7,

1987) .
3. Restaurant Corp. of America v. N.L.R.B.r slip. op. (n.c.

Cir. Aug. 25, 1987) (Bork concurring in part and dissenting
in part).
4. Wolfe v. Department of Health and Human Services, 815

F.2d 1527 (D.C. Cir. 1987).
5. Greenberg v. F.P.A.. 803 F.2d 1212 (D.C. Cir. 1986).
6. Robbins v. Regan. 780 F.2d 37 (D.C. cir. 1985) (Bork

concurring in part and dissenting in part).
7. Weisberg v. Department of Justice, 763 F.2d 1436 (D.C.

Cir. 1985).
8. Franz v. United States. 712 F.2d 1428 (D.C. Cir. 1983)

(Bork concurring in part and dissenting in part).
9. Planned Parenthood Federation of America v. Heckler, 712

F.2d 650 (D.C. Cir. 1983) (Bork concurring in part and
dissenting in part).
10. McGhee v. C.I,A. 697 F.2d 1095 (D.C. Cir. 1983) (Bork
concurring in part and dissenting in part).
B. Cert. Denied: 2 cases (%10 of total)
1. Prill v. N.L.R.B.. 755 F.2d 941 (D.C. Cir. 1985), cert x

denied Mevers Industries. Inc. v. Prill. 106 s. Ct. 313
(1985) and Meyers Industries. Inc. v. Prill. 106 S. Ct. 352
(1985).
2. Brown v. United states. 742 F.2d 1498 (D.c. cir. 1984)

(en bane), cert, denied. District of Columbia v. Brown, 471
U.S. 1073 (1985).
C. Cert. Granted: 1 case (%5 of total)
1. Abourezk v. Reagan. 785 F.2d 1043 (D.c. Cir. 1986),

cert, granted. 107 S. ct. 666 (1986).
741
D. Reversed; 2 cases (%10 of total)
1- Catrett v. Johns-Manville Sales Corp,, 756 F.2d 181

(D.C. Cir. 1985), yev'd. Celotex Corp. v. Cat.rst-t-, 106 S.
Ct. 2548 (1986).
2. Community for Creative Non-violence v. Watt, 703 F.2d

586 (D.C. Cir. 1983) (en bane), rev'd. Clark v. Community
for Creative Non-violence. 468 U.S. 288 (1984).
E. Vacated; 2 cases (%10 of total)
1- Barnes v. Kline. 759 F.2d 21 (D.C. cir. 1985), vacated.

as moot. Burke v. Barnes. 107 S. Ct. 734 (1987).
2. Ramirez de Arellano v. Weinberger, 745 F.2d 1498 (D.C.

Cir. 1983) (en bane), vacated, Weinberger v. Ramirez dg
Arellano. 431 U.S. 1113 (1985).
F- Affirmed in Part. Reversed in Part; 1 case (%5 of total)
1. Sims v. C.I.A. 709 F.2d 95 (D.C. Cir. 1983) (Bork

concurring in part and dissenting in part), aff'd in part
and rev'd in part. C.I.A. v. simsr 471 U.S. 159 (1985)
(agreeing with Bork's view below).
G. Rehearing En Bane Granted; 1 case (%5 of total)
1. Mississippi Industries v. F.E.R.C. 809 F.2d 1525 (D.C.

Cir. 1987) (Bork concurring in part and dissenting in part)
rehearing en bane granted. 814 F.2d 773 (1987).
H. Rehearing En Bane Granted, then Denied; 1 case (%5 of total)

1. Bartlett v. Bowen. 816 F.2d 695 (D.C. Cir. 1987),
rehearing in bane denied. Slip op. (D.C. Cir. July 31,
1987) .
742
Senator HUMPHREY. Mr. Chairman, at this hour as is usual there

is a certain mellowness and camaraderie in the air, but that hasn't
been the case at other times in this day or in other days, and there
are certain things that have transpired that I want to address as
my last part in this hearing today.
The Senator from Massachusetts in his summation noted that
the record speaks for itself, and indeed it does. It is unfortunate,
however, that some are so deaf they cannot hear the record speak.
It is unfortunate that some are so deaf they cannot hear what the
record of Robert Bork the Solicitor General and Robert Bork the
Judge says.
And when that record speaks and is heard, if anyone is listening,
it says unequivocally that Robert Bork is a temperate, reasonable
man. A man it turns out who has decided as a judge in favor of
minority persons and women in 88 percent of the civil rights cases
which have come before him. The record says that Robert Bork is a
man of fairness and decency, of intellect and intellectual honesty.
It is unfortunate that some refuse to listen to the record, refuse to
listen to the most relevant of all possible testimony about what
kind of judge, what kind of a Justice Robert Bork would make;
namely, his exemplary and impeccable record as a judge on our na-
tion's second most important court.
Instead they insist almost exclusively on exhuming his writings
as a college professor. Let me say something about those writings.
They were available. Those writings, same writings, were available
when this committee and the Senate scrutinized Robert Bork 5
years ago for the judge on the DC Circuit Court of Appeals and
when this body voted, without dissent, to confirm him. Those writ-
ings were available then.
My point is this: If today those writings can be claimed to prove
that Robert Bork is an enemy of equality before the law for all citi-
zens, irrespective of race or sex, then the same claim could have
been made on the same basis 5 years ago when he was before this
committee the last time. But no such claim was raised. That is very
peculiar, isn't it? Very odd. Especially in light of the extraordinary
parallel between this hearing for Robert Bork and that of Thur-
good Marshall in 1967. I saw parallel because, like Robert Bork,
Thurgood Marshall had served as both Solicitor General and a cir-
cuit court judge.
Now, Mr. Chairman, let me quote our distinguished colleague,
the Senator from Massachusetts, from his statement before this
committee on that occasion; that is, in the 1967 hearing on Thur-
good Marshall. These are the words of the Senator from Massachu-
setts:
"Mr. Chairman, I would like to add one final thought"his
words in part, of course. "Mr. Chairman, I would like to add one
final thought. Judge Marshall has undergone nominations hearings
before this committee twice in the last 5 years [just like Robert
Bork]. Twice in the last 5V2 years and on the first occasion he was
nominated to the second circuit and on the second he was nominat-
743
ed to Solicitor General. In both of those hearings this committee

heard ample proof of his fitness for high legal office, and his record
subsequently has only added to his qualifications. I, therefore,
think we can move expeditiously ahead with his confirmation."
I ask unanimous consent, Mr. Chairman, that that passage be
placed in the recordin the transcript.
The CHAIRMAN. Without objection, it will be placed in the record.
[Material follows:]
744
14 NOMINATION OF THURGOOD MARSHALL
think you have made one. We cannot. That is why I have got to try
to be certain if I can. And if you cannot answer these questions as to
your own view, then of course I have to just assume-I accept your
statement that you have never been dishonest here. No one thinks of
such a thing. I* only ask to get your honest viewpoint. That is what
I seek, if I can get it. If you tell me you cannot give it or you are not
going to give it, very well. But I would ask you another question along
the same line.
Do you subscribe to the philosophy that the fifth amendment right
to assistance of counsel requires that the counsel be present at a police
lineup?
Judge MARSHALL. My answer would have to be the same. That is a
part, of the Miranda case.
Senator MCCLELLAN. Well, I must say to youI will not pursue it
any further at the moment, but I must say to you that this leaves me
without the necessary information I need affirmatively to consent to
your appointment. I need it. You have the background, you have the
training, and vou have the ability. But I do not care who it is that
comes before this committee hereafter for the Supreme Court; I am
going to try to find out something about their philosophy and not
take the chances I have taken in the past. I mean that. This is a funda-
mental principle and an issue here that I think I have a grave duty to
perform.
I have asked these questions in all good faith. I thank you for your
attention. I regret I have not been able to get an answer that would
disclose to me your viewpoint on these vital issues.
Judge MARSHALL. I am very sorry, Senator.
Senator MCCLELLAN. That is all, Mr. Chairman.
The CHAIRMAN. The committee is going to quit at 12 o'clock, because
there will be a number of rollcall votes this afternoon.
Senator HART. Mr. Chairman ?
The CHAIRMAN. Yes.
Senator HART. Lest Imiss the next meeting, although I do not antici-
pate I would
The CHAIRMAN. We will return in the morning.
Senator MCCLELLAN. I cannot be here.
Senator HART. I would like to make just a very brief statement for
the record, if I may. And this is like entering the verdict before the
briefs and records have been read.
But it was my privilege, Mr. Chairman, to report favorably the
nomination of Thurgood Marshall for the second circuit court. I
think that his service own that court and his experience and perform-
ance as Solicitor General make it even more clear that the Senate
will do itself honor, the Court will be graced, and the Nation benefited
by his confirmation to the Supreme Court. I would regard it as a very
happy day that I can report the nomination again.
Judge MARSHALL. Thank you, Senator.
Senator KENNEDY. Mr. Chairman ?
The CHAIRMAN. Senator Kennedy.
Senator KENNEDY. I would like to make a brief statement as well.
When this committee meets later to vote on the confirmation of Mr.
Thurgood Marshall as a Justice of the U.S. Supreme Court, it will
indeed be a most historic occasion. Historv will be made not so much
745
NOMINATION OF THURGOOD MARSHALL 15
because we will be recommending the confirmation of the first member

of the Supreme Court who is a Negro, but because we will be recom-
mending the confirmation of a man who is uniquely qualified and, one
might say, perfectly prepared to become a Supreme Court Justice.
For the first time innistory, we have a man who established a national
reputation as a leading trial and appellate litigator, a man who estab-
lished a distinguished record as a Federal appellate judge, and a man
who has served as the Government's chief appellate litigator, in the
Office of Solicitor General.
Mr. Chairman, I cannot think of any better preparation and qualifi-
cation for the Supreme Court, and I do not know of any Supreme
Court nominee whose record matched Thurgood Marshall's in these
respects.
Judge Marshall is before us today because he is an outstanding law-
yer, judge, and Solicitor General, not because he is a Negro; but we
cannot ignore the fact of his race. His reaching the very highest
pinnacle of achievement in his profession is a symbol of the progress we
as a nation have achieved in assuring all of our citizens equality of
opportunity. Yet, at the same time, his success highlights how far we
still have to go.
Just yesterday, for example, in Boston, the NAACP announced its
plans to file suit in 11 cities because Negro workers are still being
denied access to employment opportunities in construction industries.
Certainly one of the most important tasks of the 90th Congress will
be to close the gap between these two disparate phenomena.
Mr. Chairman, I would like to add one final thought. Judge Marshall
has undergone nomination hearings before this committee twire in
the last five and a half years: on the first occasion, he was nominated
to the Second Circuit; and on the second, he was nominated Solicitor
General. In both of those hearings, this committee heard ample proof
of his fitness for high legal office, and his record subsequently has only
added to his qualifications. I therefore think we can move expeditiously
ahead with his confirmation, and I want to congratulate both Judge
Marshall and President Johnson on this fine appointment.
I would also, Mr. Chairman, like to introduce into the record a
statement of Senator Dodd in support of the nomination of Mr.
Marshall.
The CHAIRMAN. That will be granted.
(The statement of Senator Dodd is as follows:)
STATEMENT SUBMITTED BT SENATOR t>ooD, OF CONNECTICUT
Mr. Chairman, distinguished fellow colleagues on the Judiciary Committee,
I consider Thurgood Marshall to be one of the really great and distinguished
American men of this century.
In recent years, our Committee has been privileged to hear nominations to
the Supreme Court of some of the country's finest lawyers and legal minds.
Thurgood Marshall's nomination is fully in keeping with this tradition of
excellence.
Indeed, Thurgood Marshall is uniquely qualified for this high position.
He has served in public office with great distinction, as an appeals judge and
ns Solicitor General.
And he has been a towering figure in the landmark cases striking down dis-
criminatory laws and practices, in the litigation and the decisions which lie at
fhe very heart of American life and have brought us closer in our everyday life
to those principles for which we stand.
746
Senator HUMPHREY. And the same thing can be said for Robert
Bork. He has been twice before this committee, found fit, and, if
anything, his record has only been embellished since the last time
he appeared before this committee.
I find it peculiar, indeed, that some who voted for Judge Bork 5
years ago seem to have amnesia today about their vote. But they
did it, and as they say. the record speaks for itself. This inconsist-
ency disturbs me because it does violence not only to Judge Bork
and his family; it does violence, it does an injustice to our country.
Because, really, it pollutes and it politicizes the confirmation
process, a process which relies so heavily on good faith and biparti-
sanship. Yes, politics. And that is the only possible explanation of
the self-evident inconsistency before us. Unless you can believe the
amnesia theory, that is, you have got to see it as politics. After all,
Judge Bork's writings were available 5 years ago and they haven't
changed in the last 5 years. Politicizing the confirmation process is
a very sad way, indeed, to celebrate the 200th anniversary of our
Constitution,
Judge Bork, good luck to you. Chief Justice Warren Burger
indeed was right when he described you as the best nominee for
the Supreme Court in the last 50 years. By virtue of your superb
qualifications, you deserve confirmation; and I believe that you will
be confirmed because I cannot believe that the Senate will abide in
politicizing the confirmation process. That process is far too impor-
tant to sacrifice to short-term political expediency.
I relinquish the balance of my time.
Judge, I just, after all I have gone through in saying when we
would start tomorrow, I didn't realize that I had athis running
for President, you are not home very much; and I promised my son
I would be at his football game tomorrow at 10:30. Would you mind
if we didn't start till 12:00? That make a difference to you? That is
a heck of a thing to say in public.
Judge BORK. NO, that wouldn't make a difference, Senator.
The CHAIRMAN. I mean the same time constraints. Or 11:30?
Judge BORK. 11:30 is all right. Twelve o'clock is all right. I was
kind of hoping to see the Boston College game.
The CHAIRMAN. What time is that?
Senator LEAHY. Can we get a little side bet on this? [Laughter.]
The CHAIRMAN. I tell you what, we can work out a deal here.
Judge BORK. NO, that is all right.
The CHAIRMAN. Seriously, I don't want to
Judge BORK. I will tape the game.
The CHAIRMAN. Well, then do any of you fellows object to us not
starting till 12?
Senator HATCH. I don't know about Senator Thurmond. Oh, here
he is.
The CHAIRMAN. DO you mind if we don't start till 12?
Senator THURMOND. That is all right. Yes.
Judge BORK. Can we have the same closing?
The CHAIRMAN. Yes, same everything. Same everything. Twelve
o'clock. I may be a half hour late, I will have someone start it. I
truly appreciate it, Judge. Thank you.
I will yield now to Senator Leahy.
747
Senator LEAHY. Thank you, Mr. Chairman. At one time I always

liked to make those games. I, one time, came to a soccer game out
in McLean. My young son and the young son of now Justice Scalia
was playing. It was a cold day and the kids were playing. The two
of us were sitting there kind of muttering a bit. He mentioned he
had driven a few miles to get there. I told him that I had started
out that day in Ankara, Turkey, to get there for that soccer game.
The soccer game, fortunately, the team of our sons won.
But it is important to be there, and I mention that only as a prel-
ude. That same son with the rest of our family ishe is finishing
high school in Vermont and the family is up there, so I will not be
here tomorrow, Judge Bork. I will be in Vermont. I have been
down here now for the last 10 days. I also want to get home and
see my family. And I hope this does wrap up soon so that you can
have the rest of the weekend with yours.
You know, I said at the outset of this hearing about the rather
unique character of a confirmation hearing. I said you might find it
part trial by ordeal and part like a graduate seminar in constitu-
tional law, and I think my prediction was accurate.
But I also predicted that the Committee's examination of you
would be long, and I am sure you are ready to agree to that; that it
would be thorough; but I also felt it would be fair and serious, and
here again I think I was right. We have heard some statements
today and, in fact, early in the hearing to the effect that the hear-
ing had taken on some characteristics of an inquisition. Well, I
have to object to that.
I have been here throughout the hearings, not every single
minute of it, but most of it. In fact, I think I have been here prob-
ably more than anybody else, or as much as any member of this
committee, and I haven't seen an inquisition. I have heard some
repetitious questions. I have heard a great many leading questions,
but I haven't heard any unfair questions.
As far as repetition is concerned, I think that I should say in de-
fense of the committee that we have heard quite a few statements
from you, sir, on critical issues in this proceeding that we had not
heard beforenot in your confirmation hearings or in your prolific
writings or speeches or your judicial decisions. And every Senator,
of course, has to look at that and judge for himself what weight to
give to this new information, to decide whether it was expected or
unexpected, but I wanted to mention that fact because I think that
goes to why you have had to answer sometimes the same questions
more than once. Perhaps each of us see it a little bit differently,
each one of us has a particular interest and we would follow up on
it.
And so, you know, sometimes the rhetoric about inquisition may
inspire the troops, but I don't think people who have followed these
hearings closely and attentively would agree with that character-
ization. They haven't seen an inquisition. They have seen a com-
mitteean historic committeeof the U.S. Senate performing one
of its most useful duties under the Constitution.
I think we have done it with seriousness and dignity, but also I
might say with a firm and fair hand wielding the gavel. But they
have also seen a nominee responding forthrightly and willingly in
detail to the inquiries of members of this committee, and I com-
748
mend you for that. And also I would commend your wife and your
sons and your daughter, who sat patiently throughout this, and I
know that has been a long time for them and I think that you, sir,
should be very proud and appreciative of them, and I am sure you
are.
Judge BORK. I am, indeed, Senator.
Senator LEAHY. NOW what I would like to do, if I might, is pick
up at a place where I left off yesterday, go back again to the area
of free speech, to a concept you have expressed frequently in your
writings, and that is the idea that the local community should have
the right to suppress speech that doesn't meet the legal test of ob-
scenity on the grounds that the speech is harmful to the communi-
ty's moral standards.
And, in your 1979 University of Michigan speech, you said, on
page 15, "The Court tends to assume that there is not a problem if
willing adults indulge a taste for pornography in a theater whose
outside advertising does not offend the squeamish. The assumption
is wrong. The consequences of such private indulgence may have
public consequences far more unpleasant than industrial pollution.
The attitudes, taste and moral values inculcated do not stay behind
in the theater. A change in moral environmentin social attitudes
toward sex, marriage, duties toward children and the likemay as
surely be felt as a harm as the possibility of physical violence. The
Court has never explained why what the public feels to be a harm
may not be counted." And you made similar comments.
Now that quotation uses the word "pornography" and I know
you have discussed here the interchanging of it, but, as lawyers, we
know that pornography is one thing, obscenity is quite another.
The Supreme Court spoke to that distinction. That was the 1959
case of Kingsley Corporation v. Regents of the University of New
York and I believe that may have a target of some of your speech-
es. The State of New York had tried to ban a film, to quote from
the Court's decision, because "the whole thing of this motion pic-
ture is the presentation of adultery as a desirable, acceptable and
proper pattern of behavior."
Now, there was no contention the film was obscene. It was not
banned under an obscenity statute. The Supreme Court in a nine
to nothing decision held the first amendment prevented the State
from banning this film "because this picture advocates an idea
that adultery under certain circumstances may be proper behav-
ior," and then went on to say, "the first amendment's basic guar-
antee is the freedom to advocate ideas."
Now, that was sort of a long lead in, not because I am up here to
advocate or promote films advocating adultery but to follow up on
an answer you gave to Senator Specter. You told him on Wednes-
day that you believed that the Supreme Court is the ultimate arbi-
ter of whether a work is obscene and if a local community tried to
ban works that were not obscene, the courts should prevent that
from happening; is that correct?
Judge BORK. That is basically correct.
Senator LEAHY. And that is consistent with Kingsley, but it did
not seem consistent, to me, with your University of Michigan
speech. Would you agree?
749
Judge BORK. Well, no, Senator. It is inconsistent only in the
sense that I used the word "pornography." But as I have told you, I
have been using that interchangeably with "obscenity." I agree
with you that I should not have done that. It is not as precise as it
should be. But I was talking about pornography which amounts to
obscenity in this speech.
Senator LEAHY. Let me go to another one. A very similar ques-
tion is raised by your repeated criticism of the Supreme Court case
Cohen v. California. That is one of thoseI think we referred to it
as a Chaucerian language, modern adaptation.
Judge BORK. Yes. An Anglo Saxon term.
Senator LEAHY. AS an Anglo Saxon term and perhaps recognized
more universally than you might like. You have written about that
case a number of times. In fact, you eloquently, I thought, put it in
a speech to the Justice and Society seminar in Aspen, CO. You said
that, I guess, the defendant in this case had worn on the back of
his jacket a slogan, and I will quote you, that "suggested that the
reader perform a most implausible physical act with the draft
law," close quote.
And in fact, having done that, he was convicted of disorderly con-
duct. The Supreme Court in that opinion by Justice Harlan struck
down the conviction. Justice Harlan said the first amendment pre-
vents government from distinguishing among words that people
might find offensive, prohibiting some, permitting others.
You sharply criticized that decision. The decision had asked how
is one to distinguish this from any other offensive words, or how
can the government constitutionally pick and chose among words
without infringing free speech. And as I understand your Aspen
speech and several others, you said they can pick and choose by the
common sense of the community. And here, again, you believe the
community ideas of morality should prevail over a first amend-
ment protection of free speech.
In fact, on page 18 of your Michigan speech when you discuss the
Cohen case, you said, ' Far from protecting such speech, it"the
first amendment"offers additional reason for its suppression."
Again, a lengthy lead-in judge, only because I am wondering if
this is inconsistent with what you told Senator Specter about the
role of the Federal courts to protect non-obscene free speech re-
gardless of the views of even the majority of the local community
which might find the speech offensive.
Judge BORK. NO; I stated, and I still state, that in order to pro-
tect the first amendment guarantees of free speech, the Court has
to define what obscenity is and it may not allow a community to
override that. I object to Cohen v. California. I have here my Fran-
cis Boyer lecture on this matter, and what I said wasand I dis-
agreed with Justice Harlan on two grounds.
He said: "The principle contended for by the State seems inher-
ently boundless. How is one to distinguish this from any other of-
fensive word?"
I then said: "One might as well say that the negligence standard
of tort is inherently boundless, for how is one to distinguish the
reckless driver from the safe one? The answer in both cases is by
the common sense of the community. Now, the common sense of
the community, I take it, is shared by the Supreme Courtwheth-
86-974 0 - 8 9 - 2 6
750
er this is obscenity or not. Almost all judgments in law are ones of

degree and the lawnot the communitythe law does not flinch
from such judgments except when, as in the case of morals, it seri-
ously doubts the community's right to define harms."
Then I went on to complain about Justice Harlan's second ra-
tionale where he saidthese are my wordsapparently thinking
the observation decisive, he said, and I quote him: "One man's vul-
garity is another's lyric."
And then I said, on that ground it is difficult to see how law on
any subject can be permitted to exist because he said
Senator LEAHY. HOW law on?
Judge BORK. On any subject can exist, because he is saying that
if somebody regards it as good, how can the rest of us say it is not.
Well, we can say that about obscenity, I think. We can say that
about theft. We can say it about all kinds of things and the fact
that somebody thinks it is all right does not mean you cannot have
law about it.
Senator LEAHY. But the courts have ruled on the question of ob-
scenity and I read your analogy about the reckless driver. But can
you really use that analogy, because in speech we are talking about
a First Amendment right. We are not talking about a constitution-
al right in tort law. Not in that sense.
Judge BORK. NO.
Senator LEAHY. We are not talking about a constitutional right
to drive recklessly.
Judge BORK. NO, we are not.
Senator LEAHY. But do we have a constitutional right to speak
recklessly?
Judge BORK. We have a constitutional right to speak recklessly,
but the Supreme Court has recognized that obscenity violates that.
I mean, obscenity is not protected. I think in this case the Supreme
Court allowed obscenity on two grounds that I think were inad-
equate.
Now, interestingly enough Senator, later, in the Pacifica case the
Court said the Federal Communications Commission could take
away a station's licenseI think that was what they did to them,
or at least suspend them or something of that sortwhen a come-
dian was allowed to say a string of obscenities over the air. And I
think one of the obscenities was the same one involved in the
Cohen v. California case.
Senator LEAHY. Are those not, though, talking in theunder the
FCC law we are also talking about public airwaves, publicly
owned?
Judge BORK. AS a matter of fact, I think the man arrested in
Cohen v. California was walking into a public building, namely a
courthouse, with this obscenity on his jacket.
Senator LEAHY. YOU understand, my question, though, is if we
say that the common sense of the community is going to pick out
what words can be used or not, again, are we not saying then the
community's ideas of morality are going to prevail over our first
amendment protection for free speech? If I could just pull it a bit
further in going back to your negligent driver, there we let a jury,
for example, determine whether there is negligence or not. There
751
are certain obscenity things where we make the ruling as a matter
of law by the Court.
Judge BORK. Well, even in the negligent driver case, Senator, if a
jury found that there had been negligent driving when the judge
knew very well that there had not and that there was no basis for
the verdict, he would set it aside. But in this case there is nothing
in my writing to suggest that any community can override the
guarantees of the first amendment. No community can override
any guarantee anywhere in the Constitution, and no community
can override the powers given to Congress in the Constitution.
That is not the way the Constitution operates and I have never
said otherwise. And here I said the law does not flinch from such
judgments. The question of whether this is an obscene word is, in
the first instance, for the community. It must decide whether its
obscenity law applies to this word. Then the Court must decide
whether it is obscene within the meaning of the first amendment
case law. And if it is not obscene within the meaning of the first
amendment case law, then the speech is protected.
I have no problem with that. I have never said anything to the
contrary.
Senator LEAHY. Well, Judge, you have answered my questions a
great deal, now over an hour's worth on first amendment free
speech questions. Senator Specter has followed up a number of
those, you have answered him, and then I have followed up on
what Senator Specter said.
So you have had a lot of chances to think about the subject
during this week. Do you still feel as critical about the Cohen case
today as you did when you spoke at Aspen in 1985?
Judge BORK. Well, when was this? Because I may have said it
more recently even. But I feel that the reasons given by Justice
Harlan, that is, how can anyone tell what is obscene and what is
notwhich the law assumes it can in a case like Pacifica and else-
whereI feel that reason is not adequate and I feel that statement
that one man's vulgarity is another's lyric is not adequate to pro-
tect an obscenity.
I feel about that precisely the same way as I did when I gave the
Boyer lecture.
Senator LEAHY. Thank you. This morning, in response to Senator
Thurmond, you summarized much of your testimony throughout
this hearing about some important doctrines of constitutional law,
and I found that summary very interesting and I suspect all of us
are going to go back and read and re-read it as we go through this.
But you described these doctrines as now firmly part of our law,
that whatever theoretical challenges might be available to them, it
is too late for any judge to tear them up. I think most, or I would
assume everybody here agrees with that. But among the doctrines
you listed, some you have characterized in your writingsin fact,
in your discussions with meas too firmly embedded in our law to
tear up.
For example, the expansive interpretation of the commerce
clause, the legal tender cases that authorize the printing of paper
money. We all agree that if you go back and suddenly say, wait a
minute, that is wrong, then, of course, you would have to have a
752
new Supreme Court decision saying, for instance, plastic has taken
over for it.
Senator LEAHY. But nobody questions that. I mean, that is well
settled. But then there are some doctrines in this category which
you sharply criticize in your writings, but that you characterized at
this hearing, and I think in some instances perhaps for the first
time, or at least the first time I have heard it, as too late to tear
up.
Let met go down through a couple of those if I might. They in-
clude the prevailing free speech doctrine, including the cases on ad-
vocacy of law violation culminating in Brandenburg v. Ohio, and
the extension of first amendment protection of speech that has
nothing to do with the political process. They include the expan-
sion of the equal protection clause to cover sex discrimination and
other types of discrimination. At least you agree in general with
the results that have been reached although you would have taken
a somewhat different route to arrive there.
I do not want to go out so far here that you do not have a chance
to come back. Am I correct so far? Have I characterized your testi-
mony correctly so far?
Judge BORK. About the Brandenburg and the equal protection
clause covering gender?
Senator LEAHY. Yes.
Judge BORK. Yes.
Senator LEAHY. NOW, what I am unclear about is your testimony
on the cases based on a constitutional right to privacy in matters
relating to procreation, child rearing and the like. And there we
have some decisions that you have criticized in the strongest terms
over many years. Sometimes you have criticized them as unprinci-
pled, intellectually empty, utterly specious, in at least one instance
I believe, unconstitutional.
Judge BORK. I must learn, Senator, to begin saying, "on the other
hand.
Senator LEAHY. YOU should know, of course, that none of us
would ever resort to rhetoric that we would then chew on later. I
even had my mother tell me things. She reads the Congressional
Record and she has even referred to it and said, did you really say
that?
But let me ask you this. Would you agree or disagree with this
proposition: that the cases establishing a constitutional right to pri-
vacy in these matters have become part of our law, and that what-
ever theoretical challenges may be available to them, it is too late
for the Supreme Court to tear them up?
Judge BORK. Senator, I have, I think, rather consistently testified
that I am not going to answer that question because that is a
highly controversial matter. I have consistently testified if a case
came back that I would say to the lawyer, can you derive in some
other fashion than emanations and penumbras a right of privacy
from the Constitution that has some limits, some contours to guide
the judge?
If you cannot, can you find a narrower right that covers your
casewhatever the case isand root it in the Constitution? And if
you cannot do that, let's discuss stare decisis and whether this is
753
the kind of case that should be overruled. And I have listed the fac-
tors that one would consider in deciding whether a case should be
overruled. And I cannot go any further than that. I think that is
the best I can do.
Senator LEAHY. But what about Griswold, Judge? Let's back up
there just a tad if we might. You know, as has been said by many
before me, democracy is a terrible system of government, except it
is the best we have. And our own system of government with the
three branches of government has to be one of the most inefficient,
unwieldy forms of government, but it is by far the best.
Take the average person. They see a legislature that may go off
and do quirky things for whatever political reasons, whether it is
the national legislature or a State legislature. And they see an ex-
ecutive perhaps indifferent to their wishes as they see them. So
they always look to that one body, the Court, that seems more in-
dependent than the other two put together, less swayed by the pas-
sions of politics or the passions of the moment, and they go to it.
We go back to the law in Griswold, and the people say that is a
crazy law. We all agree on that. Except, as Senator DeConcini has
pointed out, and I certainly from my experience as a prosecutor
can well concur, you sometimes find prosecutors who will take a
look at a crazy law and say, for whatever reason, I am bringing
some charges on that, and then all of a sudden that crazy law that
we all chuckled about becomes very real to some man or woman
when the indictment is handed down or the information is issued
and the police officer is at the door.
And so where do the people go? They go to the Court. And in the
case of Griswold, you are sitting on a court reviewing that. I under-
stand and accept what you say about the penumbra of privacy and
so on. But suppose they do not have a stare decisis, and suppose
they do not have some other theory. What do you do? You say,
look, I am sorry; that is a crazy law but you just bought the radish.
Judge BORK. Senator, the fact is, I have said from the beginning
that the mere fact that a law is outrageous is not enough to make
it unconstitutional. If the statute in Griswold had ever been en-
forced against a married couple, or any couple, I think there might
have been a very good chance it would be an invalid conviction be-
cause there is no fair warning. Nobody ever applied the law that
way. If they had applied the law that way, the law would have
been repealed instantly.
But passing that, merely the fact that it is a dumb law gives the
Court no additional power because there is no statement in the
Constitution that no State shall make a dumb law. You referred to
the fact that when people are dissatisfied with legislatures and ex-
ecutives, they always look to the courts. It is also true that there is
a great deal of dissatisfaction with the courts in this country.
So that I do not think that it is fair to say that the courts are the
only body of government which the people trust. Some people do. A
lot of people do not.
Senator LEAHY. Judge, we could probably go around and around
and wrap ourselves in some kind of penumbra here doing it, but
you have answered this question a number of times.
Let me just sort of close in this area. You say in the privacy area
that you are not willing to take this as a kind of settled area of
754
law, certainly not like the cases about currency. You are perfectly
willing to accept those cases, obviously, because we as a nation
have accepted that idea. So you seeam I stating your position cor-
rectly to say you see those as entirely different?
Judge BORK. Well, I see the privacy cases in any particular con-
textI mean, it has been applied in a variety of waysas still con-
troversial cases. The Court is still divided about it. The people are
still divided about it. It remains a live controversy in a way, of
course, the legal tender cases do not.
I would like to point out once more that the Constitution explicit-
ly protects many important aspects of privacythe first amend-
ment, fourth amendment, fifth amendment and so forthso it is
not a right of privacy I am opposed to. It is a generalized undefined
right of privacy that is not drawn from any constitutional provi-
sion. Maybe it can be, but I have not seen it done yet.
Senator LEAHY. YOU would say that the law is far more settled in
the area of first amendment that we have spoken of?
Judge BORK. Oh, yes. There are hundreds of decisions in that
area.
Senator LEAHY. And equal protection?
Judge BORK. And equal protection.
Senator LEAHY. But this area you see as still a moving area, very
controversial?
Judge BORK. It seems to be.
Senator LEAHY. Judge, I might say that in some areas we agree
and some areas we disagree, but I have sat in an awful lot of con-
firmation hearings and you have sat there and answered and an-
swered and answered. And I applaud you for it.
Others will be asking you questions, and then we will spend days
going back through the record and dissecting it once again. But I
appreciate the fact that each question I have asked you have come
back with an answer and I thank you for that.
Judge BORK. Thank you, Senator. You mentioned that we may
disagree on some issues. I think that is inevitable. Reasonable men
and women will differ on issues that are still current. There
happen to be strong arguments on both sides of these questions. If
there were not, they would not be issues. If there were not, there
would not be arguments, and indeed if there were not, there would
not be cases.
Senator LEAHY. Judge, no nominee to the Supreme Court or any
other court could be so molded to fit in a way to agree with every-
body up and down this table. There is no person, a nominee for
anything, including sainthood, that could fit this group, let me tell
you that.
The CHAIRMAN. Right on the money, Senator.
Senator Simpson has 3 minutes.
Senator SIMPSON. Mr. Chairman, I thank you.
I should have submitted this to our chairman, but I think it
would be important to have, Mr. Chairman. Ask Judge Bork to
submit in writing the answers to that Judge Gordon matter on the
Vander Jagt v. O'Neill.
The CHAIRMAN. Can you do that, Judge?
755
Judge BORK. I would like to do that because there is really more
evidence there than I can keep getting at orally.
The CHAIRMAN. NO problem. The record will be open as long as it
takes for you to do that.
[Material follows:]
756

WASHINOTON. O C 2OOO1
ROBERT H BORK
QCT I 1967
Honorable Joseph R. Biden, Jr.

Chairman
Committee on the Judiciary
Dear Mr. Chairman:
I submit this letter in order to supplement my testimony

before the Committee concerning my participation in Vander Jacrt
v. O'Neill. 699 F.2d 1166 (D.C. Cir. 1983). I understand that
the questions raised by the Committee concerning Vander Jaat
arose from an August 24, 1987 letter to the committee written by
Senior District Judge James F. Gordon, a copy of which was
provided me last week upon request.
I think the recollections of other persons involved, the

contemporary documentation, and the practicalities of the
situation all demonstrate that Judge Gordon's present
recollection is incorrect. Moreover, I and other judges often
discover in the course of preparing an opinion that "it will, not
write" and change the rationale or even the result. That is
precisely what happened in Vander Jaat.
It may help to recount the events in Vander Jaat. as I and

others remember them, because our recollection of these events
differs significantly from Judge Gordon's. I have attached to
this letter all the documents I have located in my files that
concern the panel's deliberations in this case, and to which I
will refer. As you can see from a review of these documents, I
do not believe there is any basis for calling into question my
actions in the Vander Jaat case. In addition, my recollection of
these events is corroborated by my two law clerks who handled the
case from beginning to end, Paul Larkin and John Harrison, and by
Judge Robb's personal secretary, Ruth Luff. Ms. Luff's recall of
these events was brought to my attention by Senior Judge
MacKinnon, who called me after Judge Gordon's letter had been
noted in the Washington Post. I have attached to this letter the
declarations of Paul Larkin and John Harrison and the affidavit
of Ruth Luff.
In Vander Jaat. several Republican Members of the House of

Representatives filed suit alleging that House committee
assignments by the Democratic majority impermissibly diluted the
political influence of the Members and their constituents by
assigning fewer seats on committees than their numbers would
entitle them to proportionately. The district court dismissed
157
- 2 -
the suit on the grounds that the challenge was precluded by the
Speech or Debate Clause and the political question doctrine.
On March 19, 1982, I sat on a panel with Circuit Judge Robb

and District Judge Gordon, of the Western District of Kentucky,
sitting by designation, and heard oral argument on the appeal.
At conference following the argument, the panel agreed to affirm
the district court, and Judge Robb, who was senior judge on the
panel, assigned the writing of the opinion to me. Judge Robb's
March 19 memo stated n [t]he opinion will assume that the
plaintiffs have standing, but will conclude that they are out of
court for numerous other reasons."
In the course of preparing the opinion, I came to the

conclusion that the appeal should be decided instead on the
ground that the plaintiffs lack standing to sue. I reached this
view after a review of the Supreme Court's decision in the Vallev
Forae case, handed down just months before. Soon thereafter I
visited Judge Robb in his chambers and discussed with him my view
that the rationale for our decision to affirm the district court
should change. Judge Robb agreed with this proposed change, and
I returned to my chambers and informed my law clerk assigned to
the case, Paul Larkin, of -the substance of my discussion with
Judge Robb. Both Paul Larkin and Judge Robb's secretary, Ruth
Luff, remember this meeting.
On September 17, I sent to Judge Robb and Judge Gordon a

draft opinion in the Vander Jaat case; my cover memorandum
routinely indicated that I was disseminating the draft "for your
review and comment."
(Judge Gordon incorrectly remembers that my draft was not

sent to him until "the first part of November," and incorrectly
adds that it came without a cover note. This is important,
because Judge Robb was hospitalized in November, as Judge
Gordon's letter indicates, but he was not hospitalized before
then, when these events took place, at the time when Judge Gordon
would have had reason to call Judge Robb. As the declaration of
John Harrison suggests, what Judge Gordon now remembers as a
conversation with another judge concerning this incident may well
have concerned other aspects of the case, including perhaps
whether Judge Robb would write a separate opinion or join in
Judge Gordon's opinion.)
My draft opinion proposed to affirm the district court's

dismissal for lack of standing, consistent with my discussion
with Judge Robb. One week later I wrote Judge Gordon, apologized
for failing expressly to notify him in advance of the change in
rationale, and explained my standing rationale; I sent a copy of
this letter to Judge Robb on October 1, who may not have received
it immediately because he was on vacation in Massachusetts at the
758
- 3 -
time. I do not recall who or what prompted the September 24

letter to Judge Gordon.
To my great surprise, I received from Judge Robb in

Falmouth, Massachusetts a memorandum to Judge Gordon and me dated
October 5, in which Judge Robb expressed surprise at my draft
opinion and disagreed with its rationale. Judge Robb wrote that
he would apply the holding in the Rieale case, where the court
determined a matter of its "equitable discretion" not to disturb
the legislative decision. Judge Robb wrote "If Judge Gordon
adheres to our reasoning and decision at conference, I suggest
that he prepare an opinion along those lines. Judge Bork may of
course write separately."
Although in his letter Judge Gordon states that at

conference, the Rieale case and the equitable discretion doctrine
were discussed, Judge Robb's memorandum the same day of argument
does not mention that rationale as a basis for our decision.
Moreover, I do not recall any mention of the Rieale rationale by
Judge Robb or Judge Gordon at conference or at any time before
Judge Robb's October 5 memorandum. My recollection that the
Rieale rationale was not considered until Judge Robb's October 5
memorandum is supported by the two memoranda of Judge Robb in my
files and my October 8 memorandum, discussed below, to which
neither Judge Robb nor Judge Gordon objected. That memorandum
shows that at our conference after the argument we agreed to put
the case on either the Speech or Debate Clause or the political
question doctrine.
I immediately wrote Judge Robb and Judge Gordon on October

8. I explained in full my standing rationale and recounted my
earlier visit to Judge Robb's chambers, our discussion of the
standing rationale, and Judge Robb's agreement with my proposed
change in rationale. I readily acknowledged that "the confusion
into which this case has been plunged" was the result of my
failure immediately to apprise Judge Gordon of my discussion with
Judge Robb when I disseminated my initial draft opinion September
17. I made no excuses; in fact the memorandum contains four
separate apologies for this one oversight. I wrote,
"Inexcusably, I neglected to write to Judge Gordon about my
changed thinking. Judge Robb does not remember my conversation
with him, does not doubt it took place, but is sure he must have
misunderstood what I proposed." I informed the panel members
that I would write a lengthier concurrence, one which would allow
me fully to elaborate my thinking on the standing doctrine.
Thereafter, draft opinions by Judge Gordon and me were

freely exchanged and comments were made on each other's drafts.
I do not recall receiving any criticism from either Judge Robb or
Judge Gordon at the time for changing my view of the case or even
for failing to inform Judge Gordon right away of this change.
Indeed, neither I nor my law clerk at the time, John Harrison,
759
- 4 -
recalls that the matter was ever brought up after my October 8

memorandum.
In my view, whatever misunderstanding there had been in the

early fall of 1982 as a result of my failure to inform Judge
Gordon of my change in rationale when I sent him my proposed
draft was long ago cleared up to everyone's satisfaction. Upon
reading the affidavit of Judge Robb's secretary, I now understand
why Judge Gordon could have been upset at the time, because Judge
Robb, forgetting our visit, may have told Judge Gordon that he
could not have agreed to a change in rationale because I never
discussed the matter with him. But I do believe that my
memoranda of September 24 and October 8, coming just days after I
sent out my draft opinion, fully explained the circumstances to
Judge Gordon, and I had no reason to doubt in fact, I gave the
matter no thought that he was satisfied by my explanation until
his letter to the Committee nearly five years later.
Judge Gordon's present day recollection of the events in

1982 is all the more surprising after his final letter to me is
considered. On December 17, 1982, Judge Gordon sent me his
"final draft," and asked that I see to it that his opinion would
be processed for publication. Judge Gordon concluded his letter
to me with the following: "May I take this opportunity of
expressing to you my pleasure in sitting with you last March and
the making of your acquaintance, and I wish for you and yours a
happy and joyous Yuletide season." This is hardly the sentiment
of one who thinks an attempt to dupe him has just been made.
The appeal was decided eventually on February 4, 1983.

Judge Robb joined in Judge Gordon's opinion, which affirmed the
district court's dismissal on the "equitable discretion"
rationale announced in the Rieale case. I wrote a concurring
opinion concluding that the plaintiffs lacked standing to sue.
In his letter to the Committee, Judge Gordon states that he

was "shocked" to receive my draft opinion. Yet I do not recall
that Judge Gordon expressed to me, either at the time, 1982-1983,
or at any time since, any displeasure with the panel's
deliberative process, or specifically, my involvement in the
case. And Judge Gordon does not indicate in his letter that he
ever raised this matter with me directly, at the time or at any
time since. Indeed, the tone of his December 17, 1982 letter to
me is utterly at odds with Judge Gordon's August 24, 1987 letter
to the Committee.
After reading for the first time Judge Gordon's letter to

the Committee, I can understand why some members of the Committe
raised questions. But I cannot help but conclude that, had Judge
Gordon consulted the several documents that were sent to him by
me and Judge Robb at the time, which I have attached to this
760
- 5 -
letter, he would not have written the August 24 letter to the
Committee.
Apart from this detailed account of my recollection of the

panel's deliberations in Vander Jaot. I am compelled to respond
to Judge Gordon's accusation that I somehow intended to have my
view on standing serve as the holding of the case and become the
law of the circuit, without obtaining knowing concurrence of at
least one other judge. As I indicated during my testimony, it is
simply preposterous to suggest that I could or would have
attempted any such thing. The record that is at my disposal, and
which I submit to the Committee, in my view refutes any such
idea. In particular, the discussion I had with Judge Robb, and
the explanatory memoranda I wrote to Judge Robb and Judge Gordon
belie this notion.
Of course, the very fact of sending a draft opinion to the

other members of the panel, "for their review and comment," as I
did in this case, is all that is often done on my court, and
frankly, it is all that is or should be necessary. Not
infrequently, I have received from other judges on my court draft
opinions incorporating changes in rationale from that to which
the panel had agreed at conference, and sometimes even a change
in the result, without any separate explanation. And every
opinion of the D.C. Circuit must circulate among all members of
the court for a period of time before it may be issued. There is
simply no possibility that any judge could change the law of the
circuit surreptitiously. Even if that were possible, as it is
not, the full court would simply grant the inevitable petition
for rehearing en bane and put the law back in its prior position.
Any judge who tried such a maneuver would certainly fail and
would, moreover, forfeit forever the respect of his or her
colleagues. The facts show that I attempted no such thing.
I hope this letter responds to any questions the Committee

has concerning Judge Gordon's letter about the Vander Jayt case.
Sincerely,
Robert H. Bork
Attachments
cc: Honorable Strom Thurmond

761
March 19, 1982
MEMORANDOM to ^ q k^
Judge Gordon

No. 81-2150
FROM: Judge Robb

Court. Judge Bork offered to prepare the opinion. The opin-
ion will assume that the plaintiffs have standing but will
conclude that they are out of court for numerous other
reasons.
R.R.
762
UNITED STATES COURT OP APPEALS

WASHINOTON. 0 C 2OOOI
ROBCRT H BORK
iTto iTaTH emcuiT ju
M E M O R A N D U M
TO: Judge Robb

Judge Gordon
FROM: Judge Bork
Thomas O'Neill, Jr.
DATE: September 17, 1982
Attached is my proposed opinion in the above-

mentioned case for your review and comment.
763
UNITED STATES COURT Of APPEALS

DISTRICT OP COLUMBIA CIRCUIT
WASHINGTON D C 2OOOt
ROBERT H BORIC
September 24, 1982
The Honorable James F. Gordon

United States District Court
Western District of Kentucky
P.O. Box 435
Federal Building
Re: No. 81-2150 Guy Vander Jagt. et al. v.
Thomas O'Neill.~Jr7
Dear Judge Gordon:
It occurs to me too late that I should have notified
you in advance that I had changed the rationale in the
Vander Jagt case to one of lack of standing.
After I got started on the opinion, it became apparent
that it was harder to dispose of the case under either the
The Supreme Court's opinion in Valley Forge, on the other
hand, made it relatively easy to disposeB of
oF the
t case on the
standing ground. This tack was also indicated because there
are some en bane rehearings coming up in this circuit
for which the other two grounds might have implications.
That would have complicated the writing of the opinion
based upon political question or Speech or Debate.
In any event, I regret not having apprised you of
my thinking earlier in the process of writing.
Best wishes.
Sincerely,
Robert H. Bork
RHB/hh
764

DISTRICT Of COLUMBIA CIRCUIT
WASHINGTON D C 2OOOI
ROBERT H BORK
IITIO STATIS CUKUIT M I
M E M O R A N D U M
TO: Judge Robb

FROM: Judge Bork */Zn
Thomas O'Neill, Jr.
Attached is the letter I sent to Judge Gordon.

765
Falmouth, Mass.
October 5, 1982
MEMORANDUM to Judge Bork

Judge Gordon
No. 81-2150
FROM: Judge Robb
My post-conference memorandum in this case said:

Court. Judge Bork offered to prepare the opinion.
The opinion will assume that the plaintiffs have
standing but will conclude that they are out of court
for numerous other reasons.
Now I am surprised to have Judge Bork's proposed opinion,

holding that the plaintiffs are out of court because they have
no standing to sue. Although I agree with the result I regret
that I cannot concur in the opinion. I would apply the Riedle
theory to this case. The Valley Forge case, relied on in the
proposed opinion, was not a case of a congressional plaintiff,
and I see nothing in it that suggests that the Court would not
have approved the application of the Riegle theory in a
congressional plaintiff context.
I think it can be argued here that in many ways plaintiffs

have suffered injury. Although the proposed opinion says their
votes have not been nullified, it is certainly true that the power
or weight of their votes has been substantially diminished. I
am not prepared to say that a plaintiff has standing to sue
if his injury requires major surgery, but he will not be heard
if he has suffered only bruises and contusions.
If Judge Gordon adheres to our reasoning and decision at
conference, I suggest that he prepare an opinion along those
lines. Judge Bork may of course write separately.
R.R.
766
UNITKO STATES COURT OP APPEALS

WASHINOTON. D. C 2OOO1
ROMRT M. BORK
M E M O R A N D U M
TOi Judge Robb

Judge Gordon
FROMi Judge Bork
RE: Mo. 81-2150 Guy Vandar Jagt. et al. v. Thoaas

O'Neill, Jr.
Since ay earlier failure to coaaunicate is largely

responsible for the confusion into which this case has been
plunged, I think it advisable to set out my current thoughts
about the case.
1. As explained in ay prior aeaorandua, I think it easier

to deal with this case on the standing doctrine than on the
That is true both for doctrinal reasons and because the latter
two questions are auch involved in a case we are to hear en
bane later this aonth.
2. Raving reached this conclusion in the course of

preparing the opinion, I visited Judge Robb in his chambers and
explained that I preferred to dispose of the case on standing
grounds by returning .to the coaplete-nullification-of-a-vote
test adopted by the per curiaa opinion in Goldwater v. Carter.
I understood Judge Robb to agree to this, strategy.
Inexcusably, Z neglected to write to Judge Gordon about my
changed thinking. Judge Robb does not remember ay conversation
with him, does not doubt it took place, but is sure he aust
have aisunderstood what I proposed.
3. Judge Robb suggests that Judge Gordon prepare an

opinion affiraing the district court on the basis of the
circumscribed equitable discretion doctrine elaborated in
Rioqle. This is yet a fourth ground for affirmance and one not
discussed at our conference. I do not object to it for that
reason, however. Nor do I have any problea with the idea of
turning ay opinion into a concurrence.
767
Page Two
4. I do not agree that the premise of Rieqle can any

longer b considered intact. The Supreme Court's Valley Forge
decision unmistakably demonstrates that separation-of-povers
concerns are to be implemented through the concept of
standing. Valley Forge, which came after Rieqle, is merely the
latest in a long line of Supreme Court decisions which make
that clear. I do not believe there is any significance in the
fact that Valley Forge did not involve a congressional
plaintiff. Indeed, separation-of-powers concerns are even
stronger when the plaintiff is a congressman.
5. Assuming that Judge Gordon does prepare a majority

opinion resting on the doctrine of circumscribed equitable
discretion, I will feel free, as I did not when writing for the
court, to express my views more fully. I think I should
indicate now what those views are and how my concurring opinion
is likely to differ from the present draft. I would, as
mentioned above, point out that the decision in Valley Forge
removes the foundation upon which Rieqle rests. I would
explain my reasons for thinking that the doctrine of
circumscribed equitable discretion incorporates erroneous
criteria and permits too many suits by legislators. I would,
at a minimum, urge a return to the test of Goldwater v. Carter
and would, probably, go on to suggest that Kennedy v. Sampson
was wrongly decided and that there should be no such doctrine
as legislator standing.
I mention these things now out of what may be an excess of

caution bred of my failure to communicate fully earlier in the
preparation of my opinion. In no sense do I wish to be
understood as in any way displeased that one or both of you
cannot agree with what I have written. I welcome the idea of
writing a concurrence precisely because I will be able more
freely to express what I think about this area of the law.
6. If there is any danger of mootness in this case, I do

not think it could arise until January 3, 1983, when a new
House of Representatives will come into existence. However, I
do not think the case will become moot even then.
7. Despite my own failure in the past, I would appreciate

learning as soon as Judge Gordon has decided whether the
majority opinion is to rest on Riegle so that I can be ready
with my concurrence and not delay the issuance of our decision.
I apologize to both of you for not making matters clearer

as I went along.
768
$ial*l> jfcatM Jtorirt Court

PON THI

December 17, 1982
The Honorable Robert H. Bork

Judge, U. S. Court of Appeals
District of Columbia Circuit
3rd and Constitution Avenue, M.W.
RE: Vander Jagt v. Speaker O'Neill. No. 31-2150

Dear Judge Bork:
I have not as yet received your most recent re-

write in the above-styled matter; however, in the interest
of time, I enclose herewith two copies of the final draft
of my opinion.
The final draft attached hereto contains some changes
on pages 3 and 8 of the opinion and on Footnote pages 9, 10,
and 11, plus the further fact I have rewritten the same so
that it becomes now only my opinion as opposed to mine and
Judge Robb's opinion.
Inasmuch as you are now, in Judge Robb's absence, the
presiding Judge, I assume that you will see to the proper
processing of my opinion through the Clerk's office there,
and that there is nothing further for me to do. I would
however appreciate it if you would have your law clerk give
us a ring here when you have received this.
May I take this opportunity of expressing to you my

pleasure in sitting with you last March and the making of
joyous Yuletide Season.
Sincerely,
JFG/ddt
Attachment
769
DECLARATION OF
PAUL J. LARKIN, JR.
I, Paul J. Larkin, Jr., being duly sworn, state:
1. I served as a law clerk to the Honorable Robert H. Bork,

Circuit Judge for the United States Court of Appeals for the
District of Columbia, from February 12, 1987, through August 13,
1982.
2. The following account is my current recollection of the

events concerning the Judge's participation in the Vander Jagt v.
O'Neill case, which was heard by Judge Robb, Judge Bork, and
Judge Gordon.
3. At the conference following the oral argument in the

case, Judge Bork was given the assignment of drafting the opinion
for the panel. Judgment was to be entered in favor of the
defendants, O'Neill e_t al^. I believe that the panel's tentative
rationale was to be that the plaintiff's claim presented a
nonjusticiable political question. I remember that the rationale
was not to be that the plaintiffs lacked standing.
4. Judge Bork decided to draft the opinion himself, rather

than ask me to prepare a draft. After working on the opinion,
Judge Bork concluded that the panel should rule instead that the
plaintiffs lacked standing to sue. I believe that Judge Bork
770
- 2 -
concluded after reading the Supreme Court's January 1982 decision

in the Valley Forge case that standing was the appropriate basis
for disposing of the Vander Jagt case. Judge Bork told me that
he would speak with Judge Robb about his new proposed rationale.
5. Judge Bork spoke with Judge Robb in Judge Robb's

chambers about the standing rationale. Judge Bork spoke with me
after he returned to chambers. Judge Bork told me that Judge
Robb had agreed to dispose of the case on a standing basis,
rather than on the rationale to which the panel had originally
agreed.
6. I finished my clerkship in late summer. I was surprised

when I received a copy of the opinion in the case, because Judge
Bork's proposed opinion had become a separate concurrence, rather
than the opinion for the court.
7. In my view, there is no foundation to the accusation

that Judge Bork's conduct in this case was improper. I find it
impossible to believe, and know of no evidence to support the
claim, that he sought to take advantage of Judge Robb's illness
and to "pull a fast one" on the other.members of the panel or on
the District of Columbia Circuit.
771
3 -
r
Paul J. La-rkin, Jr.
Subscribed and sworn to me this rf5 day of September,

1987.
0
Notary Publi
772
DECLARATION OF JOHN HARRISON
1. I was a law clerk to Judge Robert Bork, U.S. Circuit

Judge for the District of Columbia Circuit, from August of 1982
to August of 1983. During that period i was the clerk primarily
responsible for the case of Vander Jagt v. O'Neill, a
responsibility I took over from Paul Larkin.
2. My recollection of the events concerning Vander Jagt and

their order is not perfect, but I do recall what happened with
the case and have several specific recollections.
3. As Judge Bork's files reflect, he circulated his draft

panel opinion in the case on September 17, 1982. The cover memo
did not mention that the rationale was standing rather than
political question or the Speech or Debate Clause. A week later,
Judge Bork wrote a letter to Judge Gordon in which he explained
the change of rationale and apologized for not having discussed
the matter with Judge Gordon earlier. Although I do not remember
the specific dates, I do remember circulating the first draft of
Vander Jagt and I do remember Judge Bork writing the letter to
Judge Gordon.
773
- 2 -
4. I also remember Judge Bork remarking on (1) his

conversation with Judge Robb in which they discussed the new
rationale and (2) the fact that Judge Robb later did not remember
the conversation. Judge Bork said that another of the judges on
the court had spoken of a similar problem with Judge Robb. I
think that Judge Bork talked about this after receiving Judge
Robb's memo of October 5, but I am not certain.
5. After he decided not to go along with the standing

argument, Judge Robb asked Judge Gordon to write an opinion for
the two of them based on equitable discretion. That ground of
decision is not mentioned in Judge Robb's conference memo of
March 19, as Judge Bork noted in his memo of October 8.
6. I specifically remember Judge Bork drafting the October

8 memo. In particular, I recall his expression of regret about
the confusion into which the case had been thrown as a result of
his failure properly to communicate with Judge Gordon. Judge
Bork seemed quite upset with himself for not having called Judge
Gordon at the time he talked to Judge Robb about the change in
rationale.
7. Our chambers exchanged drafts with Judge Gordon's so

that we could comment on one another's work. I discussed the
case at some length with Judge Gordon's clerk and do not remember
the change of rationale as a source of any friction between the
clerks.
774
- 3 -
8. On at least one occasion, Judge Robb's wishes in the

case were communicated to Judge Bork through Judge Wilkey. My
recollection is that Judge Wilkey told Judge Bork that Judge Robb
had decided to join Judge Gordon's opinion; earlier, Judge Robb
had planned to issue a short statement of his own saying simply
that he thought the case should be disposed of under the
equitable discretion doctrine.
9. Based on my experience as a law clerk on the D.C.

Circuit, the implication that Judge Bork hoped somehow to mislead
the other members of the panel by changing his ground of decision
without telling them is implausible. A judge could hope to do
this only if he believed that no one else would read his draft.
John Harrison
Subscribed and sworn to me this /,o day of

September, 1987.
STATE OF: District of Columbia
H( OntaMo* Expfaw ft** M. ISM Carol L. Miles/Notary Public

775
AFFIDAVIT OF RUTH LUFF
I, Ruth Luff, being duly sworn on oath, state:
1. I served as personal secretary to Judge Roger Robb,

Circuit Judge on the U.S. Court of Appeals for the District of
Columbia, from his appointment in 1969 to June 1983 after Judge
Robb assumed senior status.
2. The following account is my recollection of the events

concerning Judge Robb's involvement in Vander Jaat v. O/Weill. a
case heard by Judge Robb, Judge Bork and Judge Gordon in March
1982 and decided by the court of appeals in February 1983 in an
opinion by Judge Gordon joined in by Judge Robb.
3. I was contacted several days ago by Tony Fisher, the

Clerk of the U.S. Court of Appeals for the District of Columbia,
who had been approached by someone from the Senate Judiciary
Committee. I was told that the Committee wished to interview me.
A staff person from the Committee called me later but did not
mention the Vander Jaat case. He asked me about certain people
and I told him I no longer maintained close contact with anyone
from the court, and probably could not answer any of his
questions. I mentioned that I was busy with a new career. At
that point he thanked me and the conversation ended.
776
- 2-
4. After I read the article in the Washington Post,

concerning Judge Gordon and the Vander Jaqt case, my memory was
refreshed and I recalled the case and many of the circumstances
surrounding it.
5. I recall specifically that Judge Bork visited Judge

Robb in his chambers on this case after the case was heard,
because Judge Robb asked me to locate the file on the case and
give it to him. Although I cannot remember precisely when this
meeting took place, I believe it was in the spring of 1982.
6. I remember that at one point later, perhaps in October

1982, Judge Gordon called Judge Robb, and I got the impression
that Judge Gordon was upset by something Judge Bork had written.
After Judge Robb ended his conversation with Judge Gordon, he
made a critical remark about Judge Bork to me, and said something
to the effect of "He never came to see me, and he never let Judge
Gordon know.* Judge Robb apparently did not recall his meeting
with Judge Bork and apparently had told Judge Gordon that.
Although I knew that Judge Bork had seen Judge Robb on this case,
I did not mention it at the time. I remember Judge Bork's visit
to Judge Robb on this case because of the controversy that ensued
after this telephone call.
777
- 3 -
7. It is not surprising that Judge Robb did not recall his

meeting with Judge Bork, because Judge Robb was going through a
difficult period at this time and shortly thereafter went into
the hospital.
8. I do not understand all the attention this case has

received. The exchange of draft opinions between judges,
sometimes incorporating different rationales than that to which
the panel members had initially agreed at conference, is common
practice. I do not recall any hard feelings among judges in the
past in any case in which this practice occurred.
9. I am making this statement because I believe that,

based on my memory of the events, the accusations of improper
conduct by Judge Bork are unfounded and unfair, and the questions
about Judge Bork's integrity caused by this matter deserve to be
put to rest.
Ruth Luff
Subscribed and sworn to me this day of September,

1987.
"Notary Public $*'//*'"'

778
Senator SIMPSON. Then, Mr. Chairman, we had a very dramatic

presentation this morning by Senator Metzenbaum of a telegram
from a woman who was involved in the lead case, the sterilization
case. And the lady sent the telegram. We found now this evening,
or this afternoon, that shethis is Betty J. Riggswas contacted
approximately 2 weeks ago by an organization requesting that she
do a TV ad opposing your nomination. She refused to do that.
She was contacted today, September 18th, at approximately 1:00
p.m. by her attorney, Joan Bertin, an ACLU representative out of
New York, as well as her attorney in the Cyanamid case. Ms.
Bertin requested that she send a telegram to the Senate Judiciary
Committee. Ms. Bertin then prepared the text of the telegram for
Ms. Riggs and Ms. Riggs sent the telegram from Harrisville, West
Virginia, rather than Parrisville, but she actually lives in West
Virginia.
She does agree with the statement as prepared by her attorney
and Ms. Bertin advised Ms. Riggs that she would not be contacted
by anyone else concerning the matter. However, she statedthat
is, Ms. Riggs statedthat she has already received calls from the
press. She does not know whether anyone had contacted Ms. Bertin
who requested that the telegram be sent.
Well, I think that is offensive conduct for a lawyer. It was called
in my day, solicitation. It is an example of the ends pursued and I
think such activity is not attractive.
So I want to get that in the record, Mr. Chairman, and thank
you, Mr. Chairman.
[Material follows:]
779
ALAN K S I M P S O N WTOIAHS AFMJBS comim
JUtHCMKY C W M I T T K
ited States Senate

WASHINGTON. DC 20510
September 30, 1987
Joan E. Bertin
132 West 43 Street
New York, New York 10036
Dear Joan:
Thank you for your letter of September 23, 1987. I
believe I related exactly what I wished to in my remarks as
reported in the transcript of September 18, and the thoughts
are there as stated.
I am fully aware of your representation and activity in
the case, and you are fully aware that the decision of the
women was voluntary and that there was nothing whatever in
Judge Bork's attitude either formally, informally, or in
the opinions that would have indicated that he was
"pleased" in any way to do what had to be done. He said it
was a very "unhappy" choice. You read that one totally out
of context which is par for the course in these hearings.
You will have to ask Judge Bork about his feelings. He

knew exactly what a painful and hideous decision it was for
those women. No one has ever challenged that. The facts of
the case are quite clear. You know that as a lawyer. The
Occupational Safety and Health Review Commission gave the
same decision, and there is really nothing to be developed by
going back through the case at this time. The facts of the
case were that the lead levels apparently could not be
reduced, and all of that was quite clear to all concerned.
You have cruelly distorted Judge Bork's views when you would
say he "welcomed" this painful decision. That is distortion
plain and simple. Nothing in the record discloses that at
all. I would hunch that as you explained Judge Bork's
testimony at the hearings to Ms. Riggs, it just might not
have been quite objectively presented. I would not doubt a
whit that Ms. Riggs was "inflamed" by hearing of Judge Bork's
comments if you were right there fanning the flames and
planning your drafting of the telegram which I still consider
offensive. It is that plain and simple.
There are many definitions of the word "solicitation."

Soliciting need not have a monetary objective. The
780
Joan E. Bertin
Page two
definition also includes the activity of "stirring up the

pot." I was fascinated at the decision you cited. If you
were out protecting your client from "public
misrepresentation," that is exactly what I was doing for
Robert Bork. We both practice law, and we both know what we
are saying. I assume you do "receive fees" from some source
in your practice. I would inquire as to what that is.
I was interested in that crack about speech writers. I

have never used a speech writer in any capacity throughout my
entire public life or private life. You missed the target
on that one. That is something that is repugnant to me.
Your last paragraph says it all that it is simply my
attempt "to divert attention from the question of Judge
Bork's insensitivity to the devastating effect of his
opinions on the lives of real people and his willingness to
justify those opinions by misstating the facts." That has
never happened in Judge Bork's life on the bench and all of
his decisions disclose that. Indeed, if you review his
record, you will find that Judge Bork has participated in 396
majority opinions while on the Circuit Court. He authored
117 of those and joined in the majority on the other 279
occasions. Absolutely none not a single one of those
have been reversed by the United States Supreme Court. He
voted with Judge Skelly Wright 75 percent of the time, Judge
Ab Mikva 82 percent of the time, Judge Pat Wald 76 percent of
the time, and Judge Ruth Bader Ginsburg 87 percent of the
time.
We both have been involved in the law profession long

enough to know that we all live by the sword and die by the-
sword. Yes, indeed, I think you went too far. I feel no
need whatsoever to extend a public apology.
Perhaps Ms. Riggs would wish to come and testify, and we
can inquire of her as to all of the ra4v circumstances.
Simpsor
AKS/rj
cc: all members of the Committee on the Judiciary
781
NEWS
Washington Office 122 Maryland Avenue. N.E. Washington, D.C. 20002 202/544-1681
Morton H. Halperin. Director
For further information contact Joan Burton 212-944-9800
PRESS PttT.ttAS* September 29, 1987
ACLD haa just released the attached material on Judge Bork's

testimony about, and opinion in, OCAW v. American Cvanamid
Company.
ACLU NaMoMl lUadquartan: 132 West 43rd Street New York. N.Y. 10036 212/944-9800
en, PraeMwtf Beanor Hotmee Norton, Chair, Natfona/ AiMtory Counctf* Ira OiaMw,Exc<jM Director
86-97A 0 - 8 9 - 2 7
782
WOMEN'S RIGHTS PftOJgCT
September 29, 1987 ''"
Senator Joseph R. Biden, Jr.

Chairman, Judiciary Committee
Onited States Senate
Washington, D.C.
Re: Nomination of Judge Robert Bork to the Supreme Court
Dear Senator Biden:
Enclosed are some materials regarding Judge Bork's testimony
about, and opinion in, OCAW v. American Cyanamid Company.
Included is a statement by Betty Riggs, the woman who sent a
telegram last week refuting certain testimony by Judge.Bork. I
request that this material be made part of the Committee's
record.
Joan E. Bertin
JEB:pC
Members of the Judiciary Committee
(with enclosures)
783
WOMEN S RIGHTS PROJECT

I S W w i *3 Steel
NYcir*. MY I0M6
(212) 944-9600
Memorandum and Analysis: OCAW v. American Cyanamid Co.

OrtnrahA.au
In OCAW v, American Cyanamid Co.,y Judge Bork held that JotnGbba
federal law requiring employers to provide a workplace "free titifooutoa.
from recognized hazards that are causing or [are] likely to
cause death or serious physical harm"' did not prohibit a
policy requiring women workers to be sterilized to retain
employment, allegedly to protect against fetal injury. Five
women did unwillingly submit to surgical sterilization to
secure their right to continued employment. Bmner Hoimvi Norton
CHMH
NATO?**) U M H U H T C J U C I
Judge Bork relies on four critical misstatements of fact

and law:
1) Only Fetuses Were at Risk. Judge Bork says the
company was justified m requiring sterilization because of the
health risks to a possible fetus. But OSHA found that the
substance from which fertile women were excluded, lead, "has
profoundly adverse effects on the course of reproduction ir
both males and females" ac the same exposure levels.!'
(Emphasis added.) It is true that fetuses were at risk - so
were non-pregnant females, males, and their future children.
2) Harmful Exposures Could Not Be Reduced. Judge Bork
testified that tne cc.T.par.y could not reduce hazardous
exposures, but an Administrative Law Judge found that
"technically feasible engineering controls" were available to
reduce exposures. No one knows whether they would have made
^this workplace really safe for everyone, since the Company did
not want to spend the money to find out.
Judge Bork defends his position by saying that cleaning up
would 'force the operation to close. But the department closed
anyway, even after five women had gotten sterilized to keep
their jobs. Besides Congress had already decided that workers
should not be required to barter their health for their jobs.
if 741 F.2d 444 (D.C. Cir. 1984).
y Occupational Safety and Health Ace of 1970, 29 U.S.C. 654(*)(1).
- Attachments to Final Standard for Occupational Exposure to Lead, 43 Fad.

Reg. 54421 (1978).
784
3) The Company Had No Choice But to Require Women's '

Sterilization. Contrary to Judge Boric's statements, the
Company had numerous options which would have prevented the
sterilizations. For example, the union contract entitled
medically restricted employees to "bump" less senior employees
and transfer into other jobs, but the women were not offered
this option. OSHA requires that employees with high lead
levels be given "medical removal protection," which protects
both their jobs and their health. Better personal protective
equipment, like respirators, were readily available as an
interim measure. Just assuring women that they would be
transferred somewhere, and not fired, would probably have been
enough to prevent the sterilizations.
4) Employers Can Fire Workers Instead of Cleaning Op the
Workplace. Judge Bork assumes that it would have been lawful
for the company to fire women, if they faced work-related
health risks. He does not cite any legal or legislative
authority for such an assumption, which is inconsistent with
the OSH Act's stated purpose to assure "safe and healthful
working conditions" for "every working man and woman." (29
O.S.C. 5 651(b)). It is inconceivable that Congress intended
to allow employers to escape their responsibilities to clean up
workplace hazards by firing a major segment of the workforce -
fertile women.
785
VnAMERONClVILUeERTIESUNCNFOUNOATION'^./
:.j
WOMEN S RIGHTS PROJECT
September 23, 1987
Senator Alan Simpson

Dear Senator Simpson:
Cn national television Friday evening in the hearings on
Judge Berk's nomination to the Supreme Court, you characterized
certain actions I tsck earlier in the day as "offensive conduct"
and "solicitation". jTsur cnaracterizaticn was false, and I am
therefore writing co demand a public apology.
I represented cnir:e*r. individual women and a class of women
applicants in a sex discrimination case cnalisngi.-ig the American
Cyanamid Company's policy tnat caused five wcmen employees to
suamit to surgical s;erilizacicr. in order to secure their
employment. (This case involved the same facts as the case on
which Judge Socle ruled, bat was based cn a different legal
theory.) Setcy Sigga.- whc recently sent a telegram to the
Jusicxary Committee refuting cssciacny given by Judge Boric about
facts in the cas-a, is one of my clients.
On Friday, Judge Bork testified that the women at Cyanamid

"welcomed" and were "glad" to have the choice to get sterilized
or get fired, and that they must not have wanted to have
children. This characterization of their reactions and
intentions is a.-cross discorticn, and I knew they would resent
it.
Betty Riggs was 26 years eld and had one child when she was
confronted with the choice to get sterilized or risk losing her
job. Although she thought she might want more children, she
could not afford to lose her job. For Ms. Riggs and other blue-
collar working women in this part of the country, there were few
well-paid job opportunities. She felt powerless against this
large corporation, and she reluctantly submitted to surgery.
Later, she learned that the federal Occupational Safety S Health
Administration had determined that the chemical she worked with,
lead, poses a similar threat to the reproductive health of both
men and women. Slightly more than a year after Riggs and four
other women submitted to surgery to secure their jobs, the
786
Senator Alan Simpson

September 23/ 198 7
Page 2
company closed down the section of the plant in which they

worked/ making their sterilizations purposeless. Whether or not
the federal law at issue in Judge Boris's opinion prohibited the
challenged policy, his attempt to rationalize and justify the
result by stating that the policy was necessary and that the
women involved either "welcomed* it or were unaffected by it is
both inaccurate and profoundly insensitive.
I informed Ms. Riggs and others of Judge Bork's testimony.
Although she had previously not wanted to submit to further
publicity aoout the case/ Ms. Rigga was inflamed by Judge Berk's
public misrepresentations/ and felt the need to sec the record
straight. We discussed appropriate ways to do that/ and she
decided to send a telegram/ which I drafted for her consideration
based en my eight year attcrney-client relationship with her and
my extensive knowledge of the facts and her views. As she told
you when you called her en the telephone to confirm chat she had
in face sent the telegram, I "toned her dewn* - her cwn words
would have seen "z:a harsh" to be read on television. There can
be no question out that Ma. Riggs sent Che telegram of her own
accsrd and that it was an accurate reflection of her views.
Your attempt to deflect attention, from Ms. Riggs' statement

cy attaching aa is r.ct surprising as a political tactic but is
ethically inappropriate. As you must know, the Lawyers' Code of
Professional He3?cr.3icility distinguishes solicitation - the
atcemcc to per3iiaca a person tc become a paying client - from the
vigsrsus raprssa.-.iaiicr. tc v.-.isr. avsry ciisr.C is eicinled. It is
axiomatic cr.ac a lawyer car.r.ct solicit her own client. Moreover/
according to Supreme Court precedent, lawyers lika myself who do
not receive fees for services are not governed by the
solicitation rule as it applies to private practitioners. (See
In Re .gc.imu.3, 436 U.S. 447 (1978)). In assisting Ms. Riggs, I
"aTdTnothing improper, unethical, or unprofessional. In
accordance with the Code's precepts/ I was protecting my client
from public misrepresentation.
Your assertion that it was improper for me to draft Ms.
Riggs statement, which she reviewed, is ridiculous. Lawyers
regularly assist their clients in this fashion, just as
speechwriters assist senators without any implication that the
senators' speeches lack credibility as a result. My long-
standing relationship with Ms. Riggs enabled me to draft a
statement which accurately reflected her views/ as revealed by
the fact that she adopted and endorsed it.
Because you have wrongly impugned my professional
787
..Senator Alan Simpson

September 23, 1987
Page 3
devastating effect of his opinions on the lives of real people

and his willingness to justify those opinions by misstating the
facts. This is what Betty Riggs was trying to convey to you and
the rest of the Committee.
Verytruly yours,
Joan E. Bertin
JEB:pc
cc: Senator Biden
Senator Metzenbaun
788
0
789
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O1L*3US
790
791
Senator SIMPSON. Then, finally, we have been very helpful in
trying to present to youand you have been totally courteous with
usbut we have asked again and again for a list of witnesses so
that we might prepare ourselves as well as the people who are op-
posed to Judge Bork have prepared themselves.
If we are going to have Lawrence Tribe hereProfessor Tribe
then we want to have an opportunity to prepare our case. We want
to be prepared to go into the provocative statements of Professor
Tribe, which we will, and his writings. And we want to do our re-
search but we do not know if he is going to be here.
I know you will provide us the list of the witnesses we have
asked for for a week, and I think it only fairand you have been
imminently fairthat we have those. There is no need to go to
Monday and only know the Monday witnesses and not know who is
going to be here Tuesday and Wednesday and Thursday and Friday
and we need that if we are going to do our work and we are really
insisting upon it.
The CHAIRMAN. Yes. The answer to the question is, I believe you
already have Monday's list. You will have all the lists by Saturday.
Part of the problem is juggling witnesses, not knowing when we
would end here. But you will have it in plenty of time, I assure
you. And I further assure you that when we have itand we have
already spoken with the ranking member's staff and with the
Judge'sor what is Korologos? [Laughter.]
Senator LEAHY. We have been wondering for years.
Judge BORK. DO I have to answer that under oath, Senator?
[Laughter.]
The CHAIRMAN. NO you do not. Anyway, I spoke with Mr. Korolo-
gos about it on behalf of the Judge. We will alternate. We will see
to it there is not going to be, you know, a day of people testifying
against and then no one testifying for. I have not quite worked it
all out yet but it will be worked out tomorrow. If there is an anti-
trust panel for, there will be an antitrust panel against. If there
are professors for, there will be professors against.
I promise you it will work out that way. I just do not have the
list yet.
Now, we will have one more deviation which will be helpful. You
need not answer any more questions tonight, but rather than take
his 3 minutes to close tomorrow, Senator Thurmond is going to
take those 3 minutes to close this evening and then we will begin
tomorrow as we had indicated.
Mr. Chairman, we had all felt that the Judge would complete his
testimony today and since I have moved my family back to South
Carolina now, I had planned a commitment with them tomorrow,
and since Senator Hatch, the ranking member next to me, is here
and will be here tomorrow, I am going to ask him to take the hear-
ing.
I feel that I should keep this commitment with my family since
there are others here that can carry on this work, and I wanted to
make a brief statement this evening before Judge Bork leaves.
Judge Bork, as you conclude your testimony tomorrow, Saturday,
before the committee, I want to make a few comments at this time.
792
In my 33 years in the Senate I cannot recall a nominee who has
been more open, more frank, and more effective. Judge Bork, your
intellectual power, your honesty and your courage have left an in-
delible imprint on this committee. Never before has a nominee to
the Supreme Court, or any other court, for that matter, subjected
himself to such an intense, probing examination.
Speaking of examinations, several comments have been made
about how the committee has turned the table on you as a former
law professor so that now you had to answer questions and be ex-
amined. Well that being the case, permit me to grade you. I would
like to indicate that you have passed with honors and with honor. I
grade you A-plus.
I also believe that you and those who have watched these pro-
ceedings understand what we in Congress as public officials have
long knownit is easy for an opponent or a critic to make charges
and accusations but it is often a laborious process to methodically
disprove those charges.
However, your testimony has shown us again what we all know,
and that is, when enough light is cast on a situation and all the
facts are known, truth eventually triumphs. If I may borrow a
phrase we have heard before, your testimony has vacated, has
made null and void charges that you are an ideologue, that you are
anti-civil rights, that you do not support the first amendment, and
other issues discussed here.
Perhaps some people do not agree with your philosophy. That is
fair and accepted in America. But philosophy should not be the
only factor in these proceedings. Your testimony across the board
has indicated that you are indeed qualified to serve with distinc-
tion on the Supreme Court.
Judge, I want to compliment you as well as your wife and family,
who have been here with you throughout these proceedings. I know
as they leave the hearing room tomorrow that they will take with
them a well-founded pride in you and in your appearance before
the committee.
I want to say that nothing has come put in this testimony that
shows contrary position with the American Bar Association. The
American Bar Association mainly considers three points: Integri-
tythere has been nothing here to denigrate your integrity; profes-
sional qualificationsthere has been nothing to downgrade that;
judicial temperamentthere has been nothing to downgrade that.
You have met every qualification that is considered by the Amer-
ican Bar Association. On the matter of philosophy, people differ.
We understand that. But as I said, that should only be one factor
to be considered.
So I just want to compliment you for the way you have handled
yourself, for the way your family has stood by you here, and I hope
and pray that you will be confirmed by this committee and by the
Senate to be on the Supreme Court. You deserve it, the country de-
serves it, and good luck and God bless you.
Judge BORK. Thank you very much.
Judge BORK. May I say thanks to the Senator?
The CHAIRMAN. Sure.
793
Judge BORK. Thank you very much, Senator. That means a great
deal to me, particularly coming from you.
The CHAIRMAN. Thank you, Senator. Thank you, Judge. I hope
you enjoy your dinner tonight.
[Whereupon, at 8:10 p.m., the committee adjourned to reconvene
the following day at 12 noon.]
SATURDAY, SEPTEMBER 19, 1987

U.S. SENATE,
Washington, DC.
The committee met, pursuant to notice, at 12:03 p.m., in room
SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr.
Also present: Senators Kennedy, Heflin, Simpson, Hatch, Spec-
ter, and Byrd.
OPENING STATEMENT OF SENATOR EDWARD M. KENNEDY
Senator KENNEDY [presiding]. The committee will come to order.
We will continue the hearing on the nomination of Judge Bork
to be Associate Justice of the Supreme Court. The chairman of our
committee, Senator Biden, will join us very soon. He had indicated
that he was going to see his son in a football game. And Judge
Bork indicated, I think, last evening that he was desirous that our
hearing conclude by 3:00 o'clock so he might see the Boston College
game on television. I think we have found something that we both
agree on here.
Pursuant to our agreement, we will recognize the Senator from
Alabama for questions.
Senator HEFLIN. Well, I demure to the football agenda. This
hearing is causing me to miss a part of the Alabama-Florida game.
I am going to cut my questioning very short. I think almost
every subject has been fully covered.
Many of us have had to miss a good deal of the questioning on
this matter because of action on the floor that required us to be
therevotes and other things. Some of us had to go to other com-
mittee meetings and have been called out for various other things.
But every Senator has had staff representatives here, and there
is a transcript being made.
This Caucus Room, which I have been in now for many, many
months with the Iran-Contra hearings and these hearings, has
problems sometimes with the acoustics. So I am going to read the
transcript to be sure that I have not misunderstood any question
that may have been asked and then any answer that may have
been given.
There are only a few things I want to go into. One, yesterday I
asked you about your speech. "The Crisis in Constitutional Theory:
(795)
796
Back to the Future," to the Philadelphia Society on April 3, 1987,
which has also been labeled the "Bork wave theory of law reform."
You basically said that what you were speaking to there pertained
to the movement, the waves, that would sweep out to sea the debris
of the nonoriginalism philosophy that had prevailed in the Court,
was directed to law schools.
Well, of course, I think you can look at the speech and come up
with different interpretations, and that is one.
Just as a matter of the record, I think that that speech ought to
be made a part of the record, and Mr. Chairman, I ask unanimous
consent that the entire speech be included in the record for inter-
pretation of those who wish to read it.
Senator KENNEDY. NO objection, so ordered.
[Speech follows:]
797
"The Crisis in ConsCituCional Theory:

Back Co Che Future"
The Philadelphia SocieCy

April 3. 1987
I have been looking at your program and I am impressed.

Any SocieCy chat can get through a program billed as
"Constitutional Government: The Design, The Reality, The
Prospect" in one day is an intellectual force Co be reckoned
with. The list of speakers can be compared only with the
batting order of the 1927 Yankees. When I read it and realized
I was leading off, I was tempted to bunt just to get on base.
The title of my talk is "The Crisis in Constitutional

Theory: Back to the Future." Anybody who uses the word
"crisis" after dinner had better be prepared to prove that
there is one before he undertakes to rescue you from it. There
are few things more annoying than being rescued gratuitously.
The "crisis" is that constitutional theory, and hence the
future of constitutional law, appear to be at a tipping point.
The American ideal of democracy lives in constant tension with
the American ideal of judicial review under the Constitution.
This tension arises from what has been called the Madisonian
d ilemma.
The United States Constitution creates a Madisonian system,

one that allows majorities Co govern wide and important areas
of life simply because they are majorities, but which also
holds ChsC Individuals have some freedoms that musC be exempt
from majority control. The dilemma is Chat neither the
majority nor the minority can be Crusted to define Che proper
spheres of democratic authority and individual liberty. To
Cruse Che one is Co court Cyranny by Che majority. To trust
the other is Co ensure Cyranny by Che minority.
IC has come Co be ChoughC that Che resolution of Chis

dilemma is primarily che function of the judiciary, and
ultimately and most especially, of Che Supreme Court.
ThaC is an awesome responsibility and judges require a
strong theory of how to go about discharging it. In Alexander
M. Bickel's words, judges must achieve "a rigorous general
accord between judicial supremacy and democratic theory, so
798
Chat the boundaries of the one [can] be described with some

precision in terms of the other."
Have we achieved that accord? Most certainly not.

Instead, we have lost what we had. Though occasionally
violated in practice, in the last century and for half of this,
it was unquestioned dogma that judges were to interpret the
Constitution according to the intentions of the men who
ratified It. When^Joseph Story discussed the constitutional
role of courts, he stated, as self-evident, there being no
opposing theory, that "The first and fundamental rule in the
interpretation of all instruments is, to construe them
according to the sense of the terms, and the intention of the
parties."
We know from reading their opinions that many of today's

judges do not think themselves bound by original intent, and
now we have judges saying so openly, to the apparent
approbation of the press and certainly of most law professors.
The professors are quite explicit that the intentions of the
founders are ultimately irrelevant. You will have difficulty,
I think, naming even one full-time professor at a major law
school who writes in favor of original intent. The five
professors who once did have all been appointed to the federal
bench by the present administration. That is why I often say
that, while my colleagues at Yale do not like much else about
Ronald Reagan, they regard him as a great reformer of legal
education.
The central question of constitutional theory is the

legitimacy of power. I will attempt to demonstrate that no
philosophy of judging that is not based on original intent can
confer legitimate power upon the judiciary.
The non-originalist or non-interpretive theorists now

dominate constitutional debate. It is well to understand them
for they attempt to justify what some courts are, in fact,
doing. These theorists contend the judges must create new
rights by pursuing moral philosophy, or sensing the morality of
our society, or reading the words of the Constitution for the
meaning they have to us rather than the meaning they had to the
founders.
799
How can that conceivably be justified? The answer comes in

two parts. The first is one of relative institutional
capacities; courts are simply better than legislatures in
dealing with principles of long-run importance as opposed to
immediate problems. Alexander Bickel said: "(Cjourts have
certain capacities for dealing with matters of principle that
legislatures and executives do not possess. Judges have, or
should have, the leisure, the training, and the insulation to
follow the ways of the scholar in pursuing the ends of
government."
Professors, apparently, have very romantic notions about

judges' lives. But were we to assume that courts have superior
capacities for dealing with matters of principle, it does not
follow thac courts have the right to impose more principle upon
us than our elected representatives give us. Governmental
decisions involve a mix of, or a tradeoff between, principle
and expediency. By placing decisions in the legislature, the
Constitution holds that the mix or tradeoff we are entitled to
is what the legislature provides. Courts have no mandate to
impose a different mix merely because they would arrive at a
tradeoff that weighed principle more heavily.
The second step in the argument is that the courts'

commands are not really final and hence not undemocratic, or at
least not fatally so. It is true that an outraged people can,
if it persists, overturn a Supreme Court decision. Given Che
number of decisions to be scrutinized, however, Che political
process would exist in a state of permanent convulsion. As we
know from history, it may take decades to accomplish the
reversal of a single decision. In the meantime, the American
public must live with it. The theory assumes, as one of my
clerks put it, that in the long run none of us will be dead.
What is the point of all this scholarship -- I use the word
generously -- devoted to replacing text and history with moral
philosophy in constitutional adjudication? If you look at the
new rights these theorists would create -- rights that lead to,
a society far more egalitarian, socially permissive, and
morally relativistic than the one we have or any that the
American electorate wants -- the answer is clear.
800
As John B. McArthur put it: "Noninterpretivists are eager

to discard written systems of law, including that based on the
Constitution, because written law is the barrier between law
and politics. If the judicial process can be reduced to
political choice, then the noninterprevists' views will be
heard along with other views. When text-based methodologies
are rejected, the Constitution, formerly the trump card in the
political debate, can be excluded from discussion."
Why this desperation to abandon Che historical
Constitution? Because the political values of the
non-originalist professors are far different not only from
those of the Constitution but from those of the American
people. The trick is to appropriate Che veneration we feel
for, and Che obedience we give Co, Che actual ConsCiCuCion for
non-originalisC policical results. As Herbert Schlossberg
said, the intellectual class "has found a vehicle for giving
its values the force of law without bothering Co Cake over Che
policical authority of Che state." Judges who behave as Che
non-originalists wish upset the Madisonian balance and impose
the tyranny of the minority.
Why should we care what thaC lowing herd of independent

thinkers, the legal academics, think and write in journals
that, by and large, only they read. Because, as the very
existence of this Society and this program shows, we believe
that ideas have consequences. The teaching of non-originalism
in the law schools means that generations of law students, many
of whom will be coming onto the federal bench in the years
ahead, have been trained to believe that judges may, indeed
should, remake the Constitution. What used to be a shameful
secret, and is now just beginning to be admitted, may one day
be universally and proudly avowed as the judge's duty.
Forty years ago no one could have imagined the extent to
which, in area after area, judges would claim ultimate power
over our lives. If the non-originalisCs' teaching has its
intended resulcs, forty years on Che nation may be governed by
judges to a degree chat seems unimaginable today.
801
This debate between originalism and non-originalism, long

hidden in the academic world, is now going public. For that we
muse thank Justice Brennan and Attorney General Meese, who have
made the question of original intent one of national
discussion. Unfortunately, that discussion is too often guided
by that most venerable maxim of constitutional analysis:
"Magnopere interest cujus bovem confossum esse," or "It makes a
big difference whose ox is gored." (If you don't like the
translation, see my clerk.) It is essential that we keep
bringing the debate back to the basic issue.
The central question in constitutional theory is

said, the legitimacy of power. A judge is unelected,
unaccountable, and unrepresentative, and has no source of
legitimate power other than law. That means that any
intelligible and legitimate theory of constitutional
adjudication must rest on the idea that the Constitution is law
-- not moral philosophy, not the values judges and professors
hold dear -- but law. What does it mean to say that the words
in a document are law? One thing it certainly means is that
the words constrain judgment. They compel the obedience of
judges every bit aa much as they compel the obedience of
legislators, executives, and citizens.
Constitutional guarantees not only have contents, they have

contours that set limits. The fact that there are edges to the
Constitution's guarantees means that the judge's legitimate
authority has limits and that outside the designated areas
democratic institutions govern.
There are those in the academic world who deny that the
Constitution is law. A year or two ago I made this argument at
a small conference and an eminent constitutional theorist said
to me: "Your notion that the Constitution is law must rest
upon some obscure philosophical principle with which I am not
familiar." He was intelligent enough to see that if the
Constitution is law, the non-originalists' party is over.
Indeed it is.
If the Constitution is not law, what authorizes a judge to
set at naught the judgment of the representatives of the
American people? If the Constitution is not law, why is the
802
judge's authority superior to that of the President, Congress,

the armed forces, the departments and agencies, and that of
everyone else in the nation? Why should anybody obey us? No
answer exists.
The only way the Constitution can constrain judges is if

the document is interpreted according to the intentions of
those who ratified it. That is the way judges deal with all
other forma of law; any other approach makes the judge the
ultimate legislator.
The philosophy of original intention has been parodied as

meaning that judges may apply a constitutional provision only
to circumstances specifically contemplated by the framers. In
so narrow a form Che philosophy is useless. Since we cannot
know how the framers would vote on specific cases today, in a
very different world from the one they knew, no intentionalist
of any sophistication employs the narrow version just described.
There is a version that is adequate to the task. Dean John
Hart Ely has described it:
What distinguishes interpretivism [or

originalism] from its opposite is its
insistence that the work of the political
branches is to be invalidated only in accord
with an inference whose starting point, whose
underlying premise, is fairly discoverable in
the Constitution. That the complete
inference will not be found there -- because
the situation is not likely to have been
foreseen -- is generally common ground.
In short, all an intentionalist requires is that the text,

structure, and history of the Constitution provide him not with
a conclusion but with a premise. That premise states a core
value that the framers intended to protect. The intentionalist
judge must then supply the minor premise in order to protect
the constitutional freedom in circumstances the framers could
not foresee. Courts perform this function every day when they
apply a statute, a contract, a will, or, indeed a Supreme Court
opinion to a situation the framers of those documents did not
foresee.
Thus, we are usually able to understand the liberties that

were intended to be protected. We are able to apply the first
amendment's free press clause to the electronic media and to
the changing impact of libel litigation upon all the media; we
803
are able Co apply Che fourth amendment's prohibition on

unreasonable searches and seizures Co electronic surveillance;
we apply Che commerce clause to state regulations of interstate
trucking.
Does chis version of intentionalism mean that judges will

invariably decide cases Che way Che framers would if Chey were
here Coday? Of course not. But many cases will be decided
Chat way and, aC Che very lease, judges will confine themselves
to Che principles Che framers put into the ConstiCuCion.
Entire ranges of problems will be placed off-limits to judges,
thus preserving democracy in those areas where the framers
intended it. That is better than any non-intentionalist theory
can do. If it is not good enough, judicial review under the
Constitution cannot be legitimate. I think it is good enough.
What are the chances of restoring legitimacy to

constitutional theory? I think they are excellent. My
confidence is largely due to a law of nature I recently
discovered. To future generations Chis will be known, and
revered, as "Bork's wave Cheory of law reform." Ic will be
known and revered, that is, unless some wiseacre develops a
quantum cheory of law reform.
What I have discovered is that courts make law before chey

have any adequaCe cheory of what chey should be doing. They
are forced by Che urgencies of litigation Co give answers
before anyone knows Che quesdons. Hatters are made worse by
Che legal technique of reasoning by analogy. Only Cheory can
Cell you which characteristics of a situation are relevant so
that you know which situations are analagous for your
purposes. Without a cheory. Che judge will find false
analogies and move Che law in harmful directions.
IC is aC Chis poinC that the first wave of theorists

appears in Che law schools. Ic is their function Co shoot Che
wounded and make matters worse. They start from Che deformed
notions judges have created and extrapolate them. A rich,
erudite, and mindless literature grows up. The courts Chen
begin to adopt the extrapolations. The future of Che law
begins to look extremely bleak.
804
Buc eventually, Co some people, the face that the law and
its theorists make little sense begins to become apparent. The
result is not only meetings of the Philadelphia Society and
good dinners but a second wave of theory. The second-wave
theorists return to first principles. They ask what the
purpose of the law is, what legitimates the courts' behavior,
and they begin to construct better theories of how courts
should decide cases. Since the second-wave arguments are much
better, they slowly come to dominate the intellectual world,
the new ideas slowly percolate through to the courts, and the
law is on the road to respectability.
These reflections were prompted by the history of antitrust

law, which in its use of highly general provisions and its open
texture, resembles much of the Constitution. At the beginning,
courts were forced to decide cases for which neither they nor
the economics profession were prepared. Law that, in
retrospect, looks very odd began to grow up, law that was based
on an inadequate understanding of the limits to the judge's
role and on what can only be described as folk economics.
Judicial economics is to economics as judicial writing is to a
sonnet.
It was at this stage that the first wave of antitrust

theorists hit. They wrote books and articles about the
political and social values Chat should influence antitrust
judges. They wrote books and articles about barriers to entry,
leveraging monopoly power from one market to another, vertical
foreclosure, oligopoly behavior, market failure, and much more,
most of it arrant nonsense. BuC, in addition to achieving
tenure and consulting fees, these theorists encouraged the
courts to even greater policy fiascos. The law came to
suppress as much competition as it preserved.
Then the second wave began to gather. This is not the time
to tell the story of what has been called the Chicago school of
antitrust. I need only say that a thoughtful and intensely
rigorous economist, Aaron Director, was invited into Edward
Levi's antitrust course. He began to question, and to train a
few interested students to question, the shibboleths of
805
antitrust. This was Che germ not only of antitrust reform but
of the law and economics movement.
When I first started at Yale I thought the situation of the

law was hopeless, that the intellectual content of antitrust
was corrupt beyond redemption and would be kept that way by
political forces hostile to the free market. That accounts for
the tone of much of my early writing sarcastic and
confrontational. I thought if you couldn't win, at least you
could cause pain on the way out.
The fact is I underestimated the power of ideas. That is a

very natural error for a professor. If you sit in enough
faculty meetings, you are very likely to underestimate the
power of thought.
But the second wave Director's students started grew and
achieved a theory of the goal of antitrust based on separation
of powers concepts, and new, much more plausible views of
business behavior and the law's proper role in the market.
Scholarship was gradually transformed and so widely has its
influence spread that it became possible for people like Bill
Baxter, Jim Miller, and Dan Oliver to be appointed to head the
Antitrust Division and the Federal Trade Commission and to
survive politically in a way that would have been impossible
even ten years previously. The battles are not over yet and I
am far from claiming that the economic phenomena of Che market
are fully understood. But matters are immeasurably improved
and antitrust has been recaptured for a free market rather Chan
an interventionist, statist philosophy.
I suggest to you that we are witnessing the beginning of

the second wave in constitutional theory. The courts addressed
what they regarded aa social problems after World War II and
often did so without regard to any recognizable theory of
constitutional interpretation. A tradition of looking to
original intention was shattered. Constitutional theorists
from the academies, in sympathy with the courts politically,
began to construct theories to justify what was happening. So
was non-original ism born. That wave has become a tsunami and
its intellectual and moral excesses are breathtaking. Like the
first-wave theorists of antitrust, these theorists exhort the
806
courts Co unprecedented imperialistic adventures.
But the second wave is rising. When I first wrote on

original intent in 1971 one of my colleagues at Yale told a
young visiting professor not to bother with it because the
position was utterly passe. And so, indeed it was. But it was
more than passe; it was, I think, the future as well. On that
side of the issue there are now, to name but a few, Judges
Ralph Winter and Frank Easterbrook, Professor Henry Monaghan,
and former professor, now Chief Justice of the High Court of
American Samoa, Grover Rees. There are many more younger
people, often associated with the Federalist Society, who are
of that philosophy and who plan to go into law teaching. It
may take ten years, it may take twenty years, for the second
.wave to crest, but crest it will and it will sweep the elegant,
erudite, pretentious, and toxic detritus of non-originalism out
to sea.
The struggle for possession of antitrust was crucial,

because antitrust's ideas and symbolism go to the heart of
capitalist, free-market ideology.
The intellectual struggle for possession of the ideas and
symbolism of the Constitution is equally, or more, crucial, for
constitutional theory goes to the heart of the American
ideology of balanced democratic order and individual freedom.
We have come a long way into scholarly intellectual

corruption and judicial imperialism. We have come a long way
from the founders' vision of a Madisonian system. But we are
going back to the future. Constitutional theory will return to
Story's assumptions about original intent. But now we go back
with a far more sophisticated, and hence a stronger and more
durable, philosophy. That is the one, and the only, blessing
for which we must thank our friends, the non-originalists.
807
Senator HEFLIN. NOW, I do not know whether or not Judge
Gordon is going to attend, but there was a letter he wrote, and I
think it ought to be a part of the record. And if you have not seen
that letter that he wrote to Senator Biden, I would hope that you
would be furnished a copy sometime today, so that if you want to
respond to any aspect of it you have a copy.
Judge BORK. Whose letter is it, Senator?
Senator HEFLIN. That is Judge Gordon.
Senator HEFLIN. Have you seen a copy of the letter that he wrote
to the committee?
Judge BORK. I have not read it yet, but I suggested yesterday
that I would like to make a filing with this committee on that sub-
ject.
Senator HEFLIN. All right. It may well be that all of this is a mis-
understanding. I happen to know Judge Gordon, and know that he
is a very fine individual, and so it could be that he will testify, and
then again he may not, but I do think that that letter ought to be a
part of the record.
Senator KENNEDY. Without objection.
[Aforementioned material follows:]
808
Jomes F. Gordon
Stnlof UnlUd qiaU* Dltlilcl J.K)
422 Spill* Road. Unit 5
LoulHle. Kntu<:Vv 40207
August 24, 1987
The Honorable Joseph Biden

Senate Office Building
Washington, D.C. 20 510
Re: Judge Robert Bork
Dear Senator Biden:
You may, after reading this communication, have
no interest in pursuing the same further; however, I
feel duty bound to communicate the facts set forth
herein for your consideration.
Perhaps I should first make clear what this letter
is not. It is not a complaint against the legal
position taken by Judge Bork in the litigation herein-
after discussed, for he had the perfect right to take
any position in the matter legally he wished. Nor is
this letter a complaint arising from Judge Bork's
well known conservative legal views, for even I am
soinotiinos referred to in the local media as the "crusty
old conservative."
Rather, it is n story of actions taken by Judge
Bork which I believe reflect serious flaws in his
character. So serious, in my judgment, that they go
to his basic honesty.
This is the story. On several occasions between
1972 and 1983, I was designated, pursuant to 28 U.S.C.
294(d), to sit on the United States Court of Appeals
for the District of Columbia in order to render
assistance to them in a more speedy disposition of
, their appellate caseload. One such occasion was in
tho r.pring of 1982 when I was designated to sit with,
809
Senator Joseph Biden

August 2 4 , 1987
Page 2
amonq others, Judges Roger Robb and Robert Bork, to

hoar, among other appeals, the important case of Guj
Va_iicle?r-| Jagt, et al. v. Thomas P. "Tip" O 'Neil 1,Jr. ,
^^l^l-^r 6 " F.2d 1166, cert, denied, 464 U.S. 823
(1983). Copy attached. I believe this was the first
appeal Judge Bork heard after his appointment to the
federal bench, for I recall that on the morning of
March 19, 1982, I found him understandably lost in
tlio hallway and directed him to the robing room of the
Court.
After hearing the arguments in the Vander Jagt
ense, Judges Robb, Dork and I retired to the confnrence
room to voice our individual beliefs as to what the
Court's final holding should be. All three of us were
in instant agreement that the relief be denied
Appellants Vander Jagt. Judge Robb directed our
attention to the fact that he had written the prior
opinion of the D.C. Circuit in Riegle v. Federal Open
Market Committee, 556 F.2d 873 (1981), which lie, Judge
Robb^ considered to be the law of the Circuit. I
agreed.
After discussion, it was agreed by all and ordered

by Judge Robb that Judge Bork would write the unanimous
opinion of the Court, denying relief to the Appellant
Vander Jagt on the ground of "remedial discretion,"
relying on the Fliegjj; case. We then turned our
attention to the other appeals heard that morning,
their decision and opinion writing assignments thereof.
As we were departing the room at the end of our
conference, I recall Judge Bork alluding to the "lack
of standing doctrine," to which both Robb and I,
particularly Robb, took immediate vigorous exception
arid reiterated our views that the Riogle case con-
trolled and was the opinion of the majority of the
Court. There is no way Judge Bork could have misunder-
stood Robb's and my position.
810
Joseph Biden
August 24, 1907
Pago ]
Ten days later, I returned to Kentucky and heard

notliinq further from Judge Bork in the way of his
proposed majority opinion in the Vander Jagt case.
Months passed, and I began to become concerned lest the
Court would not get its order released before the
Congress adjourned December 31, 19G2 when, though the
issue would not become moot, it seemed to me it would
be "undercut" in importance and result in somewhat
unfair delay toward the Appellants Vander Jagt, who
were basing the thrust of their case on the facts exist-
ing in the House of Representatives as it was con-
stituted in that session.
Though I was concerned, I took no steps of inquiry,
as that was Judge Robb's responsibility as the presid-
ing Judge of our panel. I did not then know that Robb
had taken senior status May 31, 1982, and Bork had
become the ranking Judge of our panel.
Finally, around the first part of November, 1982,
I received a proposed majority opinion from Judge Bork,
denying relief to the Appellants on the narrow ground
of "no standing." There was no note or cover letter,
just the bare bones opinion. I was shocked, to say
the least, at the tenor of the opinion; however, my
first thought was that perhaps Judge Bork had, since
my departure for Kentucky, changed Judge Robb's
opinion as to the doctrine of "no standing."
Of course, Judge Bork was freely entitled to his
individual judicial opinion as to "no standing" but
he was not entitled to make it my opinion or Robb's
opinion without our individual consents.
Recognizing that if, in fact, Bork had changed
Robb's thinking, I would be required, in truth to my
own beliefs, to write a sole concurring opinion deny-
ing relief to Appellants Vander Jagt on the ground of
"remedial discretion," I concluded to telephone
Judge Robb to ascertain the true situation. When I
811
Joseph Hiden
24, 1907 '
4
did so, I discovered Judge Robb to be hospitalized with

*l.it I was advised was a serious cancer condition and
t'nt lie was unavailable for a telephone conversation
with me. I then learned, for the first time, that
Judqe Robb had taken senior status. Immediately, I
Instructed my law clerk to contact Judqe Robb's senior
law clerk and instruct him or her in my name to visit
Judcjo Robb if possible, and acquaint Judge Robb
<|MIO rally with Judge Bork's submitted proposed majority
opinion and ascertain his (Robb's) reaction thereto.
Several days later I received a call from another
Judfjo oC the [).C. Circuit Court of Appeals advising mo
tli.it Judge Robb was upset by developments in the Vander
t'']'Jtc a s e a "d instructing me, on Judge Robb's behalf,
to Immediately prepare for the two of us a majority
opinion on the basis of "remedial discretion" and to
advise Judge Dork to that effect. I was admonished
to accomplish this task so that our final order could
be issued before the end of the calendar year 1982.
I accomplished this task and the final order was
signed by Robb and me on December 23, 1982, and the
opinions were issued February 4, 1983, being delayed
by the process of preparing a majority opinion and
circulating it to Judges Robb and Bork. Judge I3ork
wrote anew his individual concurring opinion on "no
standing" after receiving the majority opinion on
"remedial discretion."
In sum, 1 now recall (a) Judge Hork's actions by
way of changing his original position, unknown to
Judge Robb and me; (b) Dork's delay in preparing his
so-called majority opinion until late in 1982; jc)
Rork's failure to dispatch his opinion with some
explanatory cover letter; (d) my absence as the junior
Judge in Kentucky; (3) Judge Robb's illness from
cancer, from which he subsequently died; (f) the
812
Senator Joseph Diden

August 24, 1987 "'
Page 5
creation of a "time of the essence" situation. These

considerations give me grave reason to suspect that
perhaps Judge Dork intended to have his narrow "no
standing" view become the majority opinion of the Court
and the law of the Circuit when, in fact, it was the
minority opinion.
As a man who has been honored by appointment to

and service as a Judge of the United States, I do not
believe one who would resort to the actions toward his
own colleagues and the majesty of the law as did Judge
Bork in this instance, possesses those qualities of
character, forthrightness and truthfulness necessary
for those who would grace our highest Court.
Senator, you and your Committee may give this
such weight as you wish, but I shall be forever con-
vinced that there was a design and plan in Judge
Bork's actions and activities. I apologize for the
great length of this communication, but I could not
conceive of any less lengthy way to give you the entire
story for your consideration.
With highest personal respect and with every good
wish, I remain,
Sincerely,
James F. Gordon
Senior United States
District Judge
JFGrgel
813
Senator HEFLIN. I have a question or two about court-stripping.
As you know, section 2 of article III refers to the appellate jurisdic-
tion of the United States Supreme Court and has the exceptions
and regulations clause contained therein.
You have been interviewed in the Conservative Digest and may
have made other statements pertaining to this. Would you set forth
your views on whether or not, first, the Congress, by an act of Con-
gress, can in effect strip the lower Federal courts of jurisdiction
pertaining to a subject matter; and second, as to whether or not the
Supreme Court can be stripped by an act of Congress of certain ju-
risdiction pertaining to such mattersfor example, there have
been efforts made in busing, prayer in school, and other things of
this sortif you would.
Judge BORK. Senator, I think it is conventional wisdom, and it
has been so held in some cases whose names I cannot now recall,
that Congress, since it need not have created the inferior federal
courts, may deprive them of jurisdiction if it wishesin which
case, constitutional cases and so forth would start in the State
court systems.
It has been argued that the exceptions clause of article III would
allow Congress to take away jurisdiction from the Supreme Court
in whole classes of cases; and as I recall, attempts have been made
to do that in the abortion area, in the school prayer area, and so
forth.
I have always taken the position that the exceptions clause was
not designed for that purpose, and therefore cannot be used for
that purpose.
It seems to me that had the framers and the ratifiers wanted a
mechanism to curb a Supreme Court that was doing things they
did not likeand return power to the Congress instead of to the
courts. They would have written a clause that did that.
This clause, in fact, if you take away the jurisdiction of the Su-
preme Court, everything would go to the State court systems. And
I do not think you can get the constitutional cases out of the State
court systems. I do not think you can deprive the State court sys-
tems of constitutional cases, because the Constitution says that
every State judge shall be bound by this Constitution.
Well, there are two reasons, then, why the exceptions clause was
not intended for use in this fashion. One is that it does not return
power to the democratic legislatures. The other is that it spreads
the decision of the issue out into 50 different court systemsthen
it would have been 13 different court systems, but the principle is
the same. That means the exceptions clause could not be used in
the most important cases.
For example, if a challenge to a draft law were made, and Con-
gress took away the jurisdiction of the Supreme Court to decide the
constitutionality of a draft law, you would have 50 different sys-
tems deciding that. And you cannot have a system in which the
draft is constitutional in Ohio and unconstitutional in Indiana, and
so forth across the country.
All these reasons lead me to believe that that clause was never
intended as a way of checking the Supreme Court when Congress
thinks it has created an excess. So I think it is really a housekeep-
86-974 0 - 8 9 - 2 8
814
ing clause, a clause to be used for making court jurisdiction more
efficient, and making things run betternot a checking device.
Senator HEFLIN. I suppose you are familiar with the 1869 case of
Ex Parte McCardle, which in effect somewhat ruled a little bit dif-
ferentit may have been circumstances, and there may be distinc-
tions between it. But would you address how that case and that
case looked at from stare decisis has an influence or lack of influ-
ence on your opinion?
Judge BORK. Ex Parte McCardle, I think, is a somewhat ambigu-
ous case, Senator. I think, if I recall correctlyI have not read it
for a long timeI think there was a suggestion in there that per-
haps this was not a flat rule. But in any event that case, as you
and I know, involved a man who had been arrested, as I recall, by
military authorities.
Senator HEFLIN. A Mississippi editor. He was arrested and being
charged; it was a habeas corpus case.
Judge BORK. Yes, during the Reconstruction Era. And he peti-
tioned for certiorari, and as I recallnot certioraria petition for
habeas corpus, as you said, Senatorand I think the Supreme
Court had actually heard argument in the case when Congress re-
moved its jurisdiction over that kind of habeas corpus. And the
Court held that it was without jurisdiction.
Now, later, I think the Court has said that there were other
writs of habeas corpus that could be used so that Congress had not
really effectively prevented the Court from hearing that kind of
issue; it just took that particular case away. And then following Ex
Parte McCardle, there was U.S. v. Klein, another somewhat ambig-
uous precedent, and they do not even cite Ex Parte McCardle in
U.S. v. Klein. But that was a case in which CongressI guess the
Court of Claims or some court had ruled that if a Confederate
whose property had been seized received a pardon, he could get the
value of his property backand Congress passed a statute saying
that acceptance of a pardon was proof of guilt, and therefore you
could not get your property back. And the Supreme Court said, as I
recall, two things. One was that that denied the President's power
to pardon, turned it into a condemnation rather than a pardon,
and Congress could not constitutionally do that; and also that it
prescribed a rule of decision for the courts, which Congress also
could not do in a constitutional case.
Now, I do not know what the upshot of Klein and McCardle to-
gether isand then, of course, there was Glidden v. Zdanok, a
more recent case, in which I think it was Justice Harlan who re-
ferred to something about McCardle as the law, and Justice Doug-
las, in either a concurrence or a dissent, said he did not think a
majority of today's Court would approve McCardle.
So I do not really know where the matter lies as a matter of
precedent or stare decisis; I think it is somewhat confused.
Senator HEFLIN. In your history, of course, as a law professor,
you had pretty well complete freedom to be provocative or to write
for any other cause that you wanted to. And of course, as Solicitor
General, your individual beliefs were somewhat restricted by the
responsibilities of that office. And as an appeals judge, of course,
some of your own personal views are restricted by certain deci-
sions, and are narrowed to the issue that might be before you.
815
If you are confirmed and go on to the United States Supreme
Court, while there will be some restrictions, you will be pretty well
free to express your own beliefs as you see fit to do so on the issue
that is before you; is that not true?
Judge BORK. Yes. I would not say I was free in the sense that I
was free as a professor; not at all. But obviously, a Supreme Court
is freer than a court of appeals isalthough there is much latitude
on the court of appeals, Senator. I do not mean to say that every-
thing is mechanical.
Senator HEFLIN. One other question, just as a bit of levity. In
reading about you and your past history, I understand that you
would someday like to be a mystery-fiction writer, and that your
detective about whom you would write would be known as "Dirk
Dork"
Judge BORK. When I was back at the law firm, another fellow
and I who were workingwe were in our twenties thenand when
we were working late at night, we used to have these fantasies
about this. And occasionally, sitting around the library late at
night in the law firm, we would fantasize about this fictional char-
acter and the wild escapades we would put him through.
But I have not planned to write a novel about that character,
Senator, for 35 years.
Senator HEFLIN. Well, I think the sales might be pretty good of
"Dirk Dork" by Bob Bork. [Laughter.]
Judge BORK. I accept your suggestion, Senator; I will do it.
Senator HEFLIN. Mr. Chairman, I yield back my time.
Senator KENNEDY. The Senator from Pennsylvania, Senator
Specter.
Senator SPECTER, Thank you very much, Mr. Chairman.
Judge Bork, yesterday, before my time ran out, you and I were
talking about the subject of judicial review and the finality of Su-
preme Court decisions and the importance of having the Supreme
Court as the final arbiter of constitutional issues.
You have spoken about this subject on a few occasions, and I
would like to pursue the matter with what you have said on those
occasions.
At a speech before the American Jewish Committee back on May
14th of 1982, you said that: "Judicial enforcement of the Constitu-
tion is a powerful national tradition"this appears on page 7. "It
is thinkable that we need never have developed that tradition and
that we would be as free as we are, as free as other Western na-
tions whose judges never acquired the power ours have acquired."
Then you go on to say that tradition and history make weighty
claims, and we should not abandon it lightly. But the thrust of
what you have said there is that it would be thinkable not to have
judicial review.
And in two later speeches, one at UCLA on April 24th of 1985,
you said, in considering the issue of interpretivism of original
intentand the term "interpretivism" means original intent as
you use it, and "noninterpretivism," judges who do not go for origi-
nal intent. You say, "The choice before us therefore is clear. It is
not a choice between interpretivism and noninterpretivism, but
rather, between interpretivism and the abandonment of judicial
review under the Constitution."
816
And then you made a similar statement in 1987 on June 12th, at
the American Studies Center, where you said: "But the more im-
portant point is that if originalism or interpretivism is impossible,
then there can be no legitimacy to judicial review."
Now, my question is, if it is thinkable that we could proceed in
this country without judicial review, and it is impossible not to
have a doctrine where judges rely upon original intent, do you
think that we have to abandon judicial review?
Judge BORK. Senator, there is simply no possibility of anybody
abandoning judicial review at this stage in our history. It is an ab-
solutely firmly-rooted tradition in our law, and it is justified by the
wayyou know, the First Congress that wrote the Judiciary Act of
1789 gave the Supreme Court jurisdiction when State courts ruled
a federal statute unconstitutional under the Federal Constitution.
That pretty clearly indicates to me that the people who knew
most about the Constitutionthat is the First Congress, who knew
a great deal about itintended judicial review, because they did
not tell the Supreme Court that it had to reverse any State court
judgment holding a Federal statute unconstitutional under the
Federal Constitution, nor did they say that State courts could not
review constitutionality.
So thatI want to come along to my speeches here for a
momentso that I think judicial review was intended from the be-
ginning, and for that reason alone, I would not abandon it.
Now, the talk before the American Jewish Committeewhen I
said it is thinkable we need not have started with judicial review,
all I meant by that is we have other democratic free societies like
England, France and so forth, which have a long history of freedom
without judicial review. We have it. We are not going to give it up.
Nobody is going to cut back on it.
At the UCLA talk, I was meeting the charge of people who say
that, oh, discerning anything called an original understanding of
the Constitution is impossible.
Well, if it is impossible to know what the Constitution means,
then I do not know where judges get their power to override demo-
cratic decisions, because I have always thought that it is the
judge's job to interpret the law and not to make it; and if you
cannot understand the Constitutionwhich I think is a ridiculous
claim; I think you can understand the Constitutionbut if you
could not, then I do not know what would authorize a judge to
make law. That is all I was saying.
Senator SPECTER. Well, but if you find that it is impossible to
find original intent, can you still have judicial reviewbecause
your speeches, at least, are pretty categorical in saying
Senator SPECTER [continuing]. That if you do not have original
intent, you cannot have judicial review.
Now, you and I both agreeand I think this is rock bottom
that constitutional law in this country mandates judicial review.
Judge BORK. Yes.
Senator SPECTER. But in the context where a presidential candi-
date is talking about judicial review being inappropriate, unneces-
sary, and in the context of an Attorney General's speech last year
which raises a suggestion, although not perfectly clear, as we dis-
817
cussed yesterday, that the Supreme Court may not be the last
word, but the executive and the Congress has the authority to in-
terpret the Constitution, and then you look to some of your speech-
es, where you say that in the absence of applying original intent,
you cannot have judicial reviewI just want to be sure that you
stand firmly for judicial review whether or not you have a common
understanding of original intent.
Judge BORK. Well, I stand firmly for judicial review. I have never
questioned judicial review. I have always thought it was an impor-
tant part of our culture and our tradition and our law. And in
America, it is an important part of our freedom. Perhaps we re-
quire judicial review more than England and France did, because
we have a much more pluralistic society and many more minorities
to take care of.
But let me say one thing, Senator. What I mean by saying that if
you cannot understandif a judge sits down and he cannot under-
stand what the Constitution is driving at, he has no idea, then I do
not know what he applies. And if his job is to interpret the law and
not to make it, I do not know what he does. But I think from my
point of view, I was just meeting those who say you cannot under-
stand the Constitution. I think that is dead wrong. I think you can
understand the Constitution.
Senator SPECTER. Well, but suppose you came to a point where
you said that determining original intent is impossible. Would it
follow, then, that you could not have judicial review in this coun-
try?
Judge BORK. I think you would require a consensus of the people
that they wanted judges to rule, even though the judges had no
law.
Senator SPECTER. There is pretty much that consensus by the tra-
dition of our Court, isn't there?
Judge BORK. I do not think so, Senator. I think the American
people want judges to interpret the law and not to make it. I think
that is pretty clear.
Senator SPECTER. Well, I agree with you about that. But the in-
terpretation of the law does not depend upon an understanding of
original intent.
Judge BORK. Well, when I say original intentI understand, you
are making a good point, Senatorbut when I say original intent,
what I mean is really original understanding, because law is a
public act, and it is really what was understood generally at the
time the Constitution was framed, not the subjective intentions of
James Madison.
And when I say original understanding, when I sit down and
look at the Bill of Rights, and it says "freedom of the press," right
away, I know what they are driving at. I may not know exactly
what they mean, but I know what they are driving at. I know the
central freedom, or the core of the freedom, that they are driving
at. When they say "no unreasonable searches or seizures," not only
from the language but from the history of the British and the way
they behaved in this country with their searches and seizures and
general warrants, I know what they are driving at.
So I do not think there is any difficulty in understanding the
basic principles of the powers granted to Congress or of the free-
818
doms preserved in the Bill of Rights and the Civil War Amend-
ments.
Senator SPECTER. Well, Judge Bork, this theme has run through
the hearing and I think is a central theme, and I think there is
some difference of opinion as to whether you can really find origi-
nal intent, whether the tradition of U.S. constitutional interpreta-
tion looks to specific constitutional rights as, for example, privacy,
which we have talked about so often, or whether in a more general-
ized context, Justices who advocate restraint, like Frankfurter, talk
about values rooted in the conscience and tradition of the people,
and that the history of U.S. constitutional jurisprudence, as I see it,
has in many, many cases not been grounded on original intent
sometimes, yes, but frequently not.
And it would be my thought that as the Court goes forward, and
that if you are confirmed, that there would be more flexibility in
the application of constitutional law. And I look to your own writ-
ings on the question of whether you can really find original intent.
In 1968, in the article that you have referred to a number of
times in Fortune Magazine, where you set forth a theory of consti-
tutional law, you had written this at page 141: "The text of the
Constitution, as anyone experienced with words might expect, is
least precise where it is the most important. Like the Ten Com-
mandments, the Constitution enshrines profound values, but neces-
sarily omits the minor premises required to apply them."
So that, from that statement, it seems to me a fair reading is
that it is pretty hard to find intent of the framers.
Then, you go on on the same page: "History can be of consider-
able help, but it tells much too little about the specific intentions of
the men who framed, adopted and ratified the great clauses. The
record is incomplete. The men involved often had vague or even
conflicting intentions."
In the often-quoted Indiana Law Review article, you talk at page
22 about the first amendment, and you say: "The framers seemed
to have no coherent theory of free speech." Then, you say: "The
first amendment, like the rest of the Bill of Rights, appears to have
been a hastily-drafted document upon which little thought was ex-
tended."
Then, at page 26, you say: "The framers of the first amendment
probably had no clear view of that proposition."
And in your later speeches, you discuss repetitively the question
about it is really the ratifiers as opposed to the framers and the
conflicting views.
Now, in that context, where I think you are exactly right in
what you have written and said, because of the great difficulty of
finding intent, how much validity is there in searching for original
intent as a necessary prerequisite for a constitutional decision,
without which the Court has no legitimacy?
Judge BORK. Well, I think that is right, Senator; there is a lot of
difficulty. But let me discuss this. Unlike the Ten Commandments,
the Constitution and the Bill of Rights and the Commandments
have a similarthe Bill of Rights and the Ten Commandments
have a similar generality, but we are closer in history, and we have
a lot of evidence about the Bill of Rights now.
819
The remark I made in Indiana, which you have just quoted, I
took from Leonard Levy's book on the first amendment. That book
is now about 30 years old; I think he has found further evidence,
and other people have found further evidence since then.
But we do have, in the case of the ConstitutionI referred to the
fact that we cannot know the framers' specific intentions; I think
you read that in one of those pieces, that we cannot know their
specific intentions, and indeed we cannot. And indeed, their specif-
ic intentions would not help us a great deal because our task is to
apply their public understanding of what they were protecting to
modern circumstances as to which they could have no specific in-
tentions.
But when I talk about the original understanding, what a judge
needs from the Constitution is a major premisewhat is it he is
supposed to protectand then he has to protect it.
Now, we have the text. For example, the first amendment tells
us that it deals with religion, no establishment, free exercise. Right
away we know that we are in an area, so that we know it is not
just a free-floating liberty; we know what they are talking about.
They are talking about not establishing religion, and they are talk-
ing about free exercise of religion.
Then they say Congress shall make no law abridging the freedom
of speech or of the press. So I know now that I am talking about
speech and press, and the freedom of those two, so I know that I
am not talking about a generalized liberty; I am talking about a
freedom of the press.
Now, when you want to flesh that out, for example, you have a
lot of contemporary debate about what was going on. You have, in
the case of the main body of the Constitution, the Federalist
Papers, the Anti-Federalist Papers, and many debates. In the case
of the Bill of Rights, we are a little short on debates in Congress,
but you have some contemporary discussion; you have actions by
the early Congresses which shows what they understood them-
selves to have proposed; and you have actions by the early courts,
which show what they understood to have been done, and some of
those courts for people who were at the convention or at various
ratifying conventions.
And then you have, for example, in the case of the free speech
clause, or the free press clause, episodes of early history, such as
the passage of the Alien and Sedition Acts and the terrible contro-
versy that raged around those, so that we now understand that the
Alien and Sedition Acts were in fact unconstitutional statutes,
which, in all this way, we begin to get a principle whose contours
are not clearcut. That is granted. But at least we understand the
basic freedom they wanted to preserve.
Now, judges who look for original understanding and look at the
same evidence and think as hard as they can will, in the borderline
cases, often come out differently. I do not mean to say that original
understanding gives anybody a mechanical way to approach a prob-
lem. It does not; but it gives them a pretty firm starting point.
Senator SPECTER. Judge Bork, as you define it, it does not seem
to me that original intent provides any more specificity than the
Frankfurter definition or the Cardozo definition of rooted in the
tradition and history of our society.
820
When you talk about fundamental valuesand you have written

on surveillance and electronic surveillance, which the Founding
Fathers could not have anticipated; similarly, they could not have
anticipated birth control devices. You talk about the concept of pri-
vacy, it runs through the Constitution, in a number of amendments
as you described them yesterday. Why is the doctrine of original
intent sacrosanct in terms of the great difficulty of applying it with
specificity, as you saybecause you point out that their specific
intent is not clearcut.
Does that definition really advance the definition of constitution-
al values more so than Cardozo and the nature of the judicial proc-
ess?
Judge BORK. Well, Senator, you are making a very powerful ar-
gument from a very strong tradition. I hopeI think what I am
saying also comes from a very strong tradition in our constitutional
law, going back to Joseph Story and the first Marshall Court.
Let me say this. If the concept of ordered liberty, which Cardozo
and others used, turned out to be a continuing tradition on the Su-
preme Courtand I do not know where it stands nowand if it
had a defined category so that judges were not free to make law at
will, then I would not have so much difficulty with it.
But as you know, Justice Black, who objected strongly to what he
called the natural law/due process version of making law, in fact
incorporated, tried to get and succeeded, various parts of the Bill of
Rights, now almost all of the Bill of Rights, incorporated against
the States through the 14th amendment, and in large part his
motive for doing that, as he said, was to prevent judges from roam-
ing at will. He thought if you could incorporate the Bill of Rights
against the States, then judges would apply the prohibition to the
Bill of Rights and secure liberty, but they would not use this what
he called natural law method of making up rights.
And on that point, Senator, reasonable men can differ. Strong ar-
guments can be made on both sides. I adhere to my view that I
want judges to be confined by the law, not make it up. There are
others who disagree with that, but as I said, I believe in interpret-
ing it, not creating it.
Senator SPECTER. Well, Judge Bork, it is true that the specific
provisions of the Bill of Rights were taken into the due process
clause of the 14th amendment. But that was not the sole basis used
by the Court. And before the Court came to the incorporation doc-
trine, there were many wrangles. And the first time the Supreme
Court interfered, or took jurisdiction of and changed, a State crimi-
nal proceeding was the very famous case of Brown v. Mississippi.
And if you read through that case, a 1936 opinion of the Supreme
Court of the United States, it is an abject horror storyand I am
not going to go through the facts. Sufficient to quote Chief Justices
Hughes' characterization of it as a medieval account as to what
was done to the black defendant in that case by the law enforce-
ment authorities of Mississippi.
And the Court then, for the first time, strikes down a State
criminal conviction on the ground that it offends principles of jus-
tice rooted in the tradition and conscience of our people, so as to be
ranked as fundamental. And that got it started.
821
And then Justice Black comes along in the case of Ashcraft v.
Tennessee, which involves really grilling. And as I was rethinking
Ashcraft v. Tennessee, I thought you might have standing, Judge
Bork, to object to what has been going on here. Ashcraft was ques-
tioned for 36 hours by half a dozen law enforcement officials. You
have been questioned for longer than that, by more.
But Ashcraft is a Black opinion, and it is pretty hard sometimes
to separate procedural due process from substantive due process.
And Black strikes down the conviction on grounds of an involun-
tary confession.
But perhaps it is sufficient, Judge Bork, if you say that the argu-
ment is a powerful argument from strong tradition, because part of
our process here, in our checks and balance systemthis is the
only time that anyone gets to talk to a potential Supreme Court
nominee or to a federal judge, and it is a great thing in our system,
and it is the strength and rockbed, life tenure. And I think of all
the traditions in our country, that is the strongest; that has been
the backbone freedom in this country for 200 years.
So that if you are confirmed, we will never have a chance to talk
to you again
Judge BORK. Well, you can talk to me, Senator; it may be not
under these lights.
Senator SPECTER. Well, it will not be under these lights, and it
will not be quite this way. And this is, I think, part of the beauty of
the system of checks and balances.
I had the occasion on Thursday, day before yesterday, to join the
President in going to Philadelphia and then to come back here in
the afternoon and participate in this proceeding, and the President
had some very good things to say about you, Judge Bork. And it is
the beauty of the system where the Court has the last word, and
the President makes the appointments, and you have to clear the
Senate. So this is an experience which is a very unique one.
You and I were talking a few moments ago, and I think that this
will set a pattern for the future, and a very good one, for the bene-
fit of the country, because this is a very different confirmation pro-
ceeding than we had last year with Justice Rehnquist for Chief and
for Judge Scalia for Justice and for Justice O'Connor in 1981.
Many people do not realize that these proceedings where nominees
appear before Senators are of relatively recent duration, starting
with Justice Frankfurter.
But we have gone farther in this line, I think, than at any time
in the past. And it may be that there will be some imprint on your
thinking if you are confirmed about what may be a strong argu-
menta powerful argument, as you putfrom a strong tradition.
That is part of what the process is and what I would hope would be
accomplished.
And when I look at the question of original intent, I think it is
fine in some cases where you can find it, and I think if you can
find it, you ought to apply it. But I think so much of the time you
cannot find it, and that you ought not be hidebound by it, and that
Frankfurter is right when he talks about the contours of the law
being reasonably specific and not really subjective, and you do not
have to have an articulation of privacy to find it as a fundamental
right in the Constitution to apply it, if the facts of the case require
822
it in accordance with the needs of the Nation, which is your lan-

guage from a few days ago as you talked about the commerce
clause.
Judge BORK. Yes.
Senator SPECTER. If you look beyond the issue of original intent
to the issue of legislative intent, there is a very interesting com-
ment by Justice Scalia in the case of Edwards y. Aguilar, where he
says at page 27 of the opinionand he is talking about legislative
intent"Discerning the subjective motivation of those enacting the
statute is, to be honest, almost always an impossible task." Going
on to page 28, he says, "To look for the sole purpose of even a
single legislator is probably to look for something that does not
exist."
And legislative intent in the statutes is very much akin to origi-
nal intent of the drafters or of the ratifiers, and I am sure that
every one of my colleagues here today would agree that if you seek
legislative intent, it is nebulous and really nonexistent as you try
to carve it out for an entire body of 100 Senators or 435 Congress-
men.
So the question arises to what extent can you really bottom your
opinions on what the Congress intended.
Judge BORK. Well, in the statute, Senator, I have always had to
and I did not think I did too badly at getting at what Congress is
driving at
Senator SPECTER. HOW do you know?
Judge BORK. Well, sometimes Congress will tell you if they do
not think you got it right.
Senator SPECTER. We say very little on those subjects. Our reply
power, our timing, is almost nonexistent. You might get a call
well, we would not call you up, either
Judge BORK. I meant you might amend the statute so that we got
it right.
Senator SPECTER. Well, you can ask Senator Byrd about how dif-
ficult it is to pass anything through the Congress in terms of re-
sponding when something occurs. We are very good at inaction.
You cannot tell anything by what we do not do.
Judge BORK. All right. I think Justice Scaliaand he is a friend
of mine, so he will not take this amissI think he was taking an
easy target when he talked about subjective intent.
I do not thinkthat is rightI cannot tell what the subjective
intent of various people is, but I can tell from what they wrote and
what they said what the general understanding was. And in the
case of the Constitution, we have a lot of historical records which
are constantly being improvedI mean, the research into them is
constantly being improvedto show what the public understanding
of the Constitution was.
Senator HATCH. Would the Senator yield for a comment on that?
Senator SPECTER. NO, Senator Hatch. I would prefer to finish my
questioning. I have limited time, and there will be time later, and I
am right in the middle of a train of thought here.
Judge Bork, moving to the issue of legislative intent in the anti-
trust field, a subject which I had broached with you yesterday, in
your book on antitrust, turning to page 412, you say this: "Con-
gress as a whole is institutionally incapable of the sustained, rigor-
823
ous and consistent thought that the fashioning of a rational anti-
trust policy requires."
Now, if that is so, Judge Borkand you may be entirely right-
where does that leave the courts on enforcing Congressional
intent?
Judge BORK. Let me just read the next sentence, so I get off the
hook here a little bit.
Judge BORK. NO group of that size, the size of Congress, could ac-
complish the task. I mean, large bodies simply do not reason coher-
ently together. There are just too many people to sit down and
draft a detailed antitrust law according to the teachings of micro-
economics.
Where it leaves me, Senator, is this. The antitrust laws are re-
markable statutes, and as the Supreme Court has said, they have
the generality of provisions of the Constitution. The Sherman Act,
according to John Sherman, the Senator whose Act it really was
and who did most of the explanation of it, he gave examples of
things that were to be illegal, and he said for the rest, it was left to
the courts to evolveto protect competition from case to case, as
they saw it, as they understood the facts and the competition.
The later antitrust statutes, the Clayton Act in particular, di-
rects the courts to deal with certain kinds of eventsmergers and
so forthwhich may tend toward monopoly or tend toward a less-
ening of competition. That is really a delegation to courts to use
their best understanding of what preserves competition and what
harms competition. And that is the kind of principle that Congress
is perfectly capable of thinking of and enacting, and leaving it to
the courts to protect competition.
Senator SPECTER. But Judge Bork, in your writings, you complain
about searching for congressional intent, and you refer to one Con-
gressman who wants to have small businesses and not conglomer-
ates or concentration, in order to avoid slum housing in big cities.
And with all due respect, you ridicule that sort of a legislative ob-
jective, and you say that, given the vagaries of what Congress has
intended or what some Congressmen have spoken about in the
antitrust field, it is too vague for judicial enforcement.
Judge BORK. Senator, I think I did say that, but I think I was
making a somewhat different point. There areand this goes back
to the main theme of my view of judgingthere are commentators
in the field of antitrust who want courts, through the antitrust
laws, to impose or implement multiple values, often having nothing
to do with competition. And I was making the pointand then
they point to somebody who said in the legislative history of the
Clayton Act, Section 7, who talked about the fact that where you
have big business, you have more smog and a higher lung cancer
rate, or something of that sortand I was ridiculing the idea that
a judge should take that and start measuring smog and lung
cancer rates to decide whether or not a merger was legal, because
the statutea judge cannotthat is just a complete delegation to
the judge to make any social policy. What a judge can do is look at
the words of the statute, which say competition and monopoly; pro-
mote one, avoid the other.
824
Senator SPECTER. But Judge Bork, if the Congress is giving you

multiple values, and then you say that they have nothing to do
with competition, you are the judge; you are supposed to carry out,
under your theory, the legislature's intent. This is Madisonian ma-
joritarianism. Who are you to say that these multiple values are
not worthwhile?
Judge BORK. Oh, I did not say that, Senator. I
Senator SPECTER. Well, but you are saying they have nothing to
do with competition.
Judge BORK. Well, if you look at the legislative history, Senator,
as I have for my sins in these statutes, no Congressman ever says
preserve competition, but if there is a conflict between that and
smog, or a conflict between that and something else, make a trade-
off between them; let a little injury to competition occur in order to
reduce smog. No Congressman ever says a thing like that.
What they do is say, "We are passing a statute to improve com-
petition," and then everybody gets up and makes a talk about all
the other good things it will do. But those are side effects, I think,
of the statute to preserve competition, not independent values that
a judge is supposed to weigh.
Senator SPECTER. Well, Judge Bork, the thrust that I read from
your writing in the antitrust field is a conclusion of not a very
"high regard" would be the wrong word, for the congressional
intentbut not a kind of dedication to carrying out congressional
intent which you have written about in other fields.
Let me refer you to the section on price discrimination, page 382.
You start off here: "The genesis of the Robinson-Patman Act is an
oft-told tale. Enacted in 1936, the statute was a child of the Depres-
sion, as was so much pernicious economic regulation. Robinson-
Patman shared with much of that regulation, notably the National
Industrial Recovery Act, the premise that free markets were rife
with unfair and anticompetitive practice which threatened compe-
tition, small businesses and consumers."
And then you go on, on the next page, in the first full paragraph:
"Antitrust concerned with vertical mergers is mistaken.'
Judge BORK. I am sorry, Senator. Where is that?
Senator SPECTER. This goes back to page 220. It is my next page;
it is not your next page.
Judge BORK. Okay.
Senator SPECTER. "Antitrust concerned with vertical mergers is
mistaken. Vertical mergers are means of creating efficiency, not of
injuring competition."
Let me put these two questions in one, because I am going to run
out of time here, notwithstanding how much time it appears to be.
Let me start with the first question. When you call an act "per-
nicious," does that mean it is unconstitutional, by the way?
Judge BORK. NO, not at all. There are a lot of
Senator SPECTER. HOW do you enforce a pernicious act, Judge
Bork?
Judge BORK. YOU have to enforce it. You may not like it, but you
have got to enforce it.
Senator SPECTER. Well, how do you do it on the curved lines?
How do you do it on the complex factual issues which are present-
ed to you where, as the finder of fact, you have the discretion to
825
find the facts, and you could arguably find them in a variety of
ways so that an appellate court would not reverse you.
Does it color your thinking to find set of facts A, so that you do
not have to apply this pernicious law?
Judge BORK. Well, Senator, I do not know. I have never been a
trial judge, and I hope not. If I were a trial judge, I would try to
find the facts as best I could from the contentions of the parties.
I think, by the way, Senator, it should be said that the scholarly
opinion on all sides of the antitrust issue is that the Robinson-
Patman Act is a peculiarly pernicious statute.
Senator SPECTER. I do not care, Judge Bork. The Congress passed
it
Judge BORK. Oh, I agree with that.
Senator SPECTER [continuing]. And you saywell, I do care, of
coursebut for purposes of carrying out your approach to the law,
legislative acts govern, Madisonian majoritarianism; that is what is
to be enforced, unless there is a specific constitutional provision to
strike it down. Absent that, no legitimacy in the Court.
Judge BORK. Right.
Senator SPECTER. YOU have got a pernicious statute. What do you
do with it?
Judge BORK. I apply it
Senator SPECTER. On the subject of vertical mergers, "are means
of creating efficiency, not of injuring competition."
"Congress prohibits vertical mergers," you say a fair reading of
the statute says. What do you do?
Judge BORK. I strike down the vertical merger if a fair reading of
the statute says that.
I am not out there as a judge to make the economy wonderful. I
am out there to follow Congress' intentions. And when Congress
has delegated to a judge, to the courts, the task of deciding when
competition is threatened and when it is not, you do the best you
can.
On the other hand, if Congress says "This thing threatens compe-
tition; strike it down," I have to do that, even if I do not think it
threatens competition.
Senator SPECTER. And how do you do that when Congress as a
whole is institutionally incapable of a sustained, rigorous and con-
sistently thought out fashioning of a rational antitrust policy?
Judge BORK. Well, I was talking about whether Congress could
write a detailed set of antitrust regulations which made economic
sense, and that would require a debate of economists for about a
year, and I do not think the Congress has the time and has too
many people to have that kind of a debate. But Congress is certain-
ly capable of adopting the general principle of preserving competi-
tion and giving some illustrations of what they mean.
Senator SPECTER. Judge Bork, the New York Times, on March
8th of 1983, wrote this about you: "Last week, at a day-long work-
shop sponsored by the Conference Board, a business research orga-
nization, Judge Bork, who sits on the U.S. Court of Appeals for the
District of Columbia, made it plain that he felt free to apply his
economic theories, whatever the law says. Take his view on the
Robinson-Patman Act, which prohibits price discrimination." And
there is a quote here, presumably your statement. " 'If the new eco-
826
nomics is right, there is never a case in which price discrimination

injures competition,' Judge Bork said. In the Robinson-Patman
Act, when Congress said it wanted to forbid price discrimination to
protect competition, they said it with a wink. I do not think it is a
judge's job to enforce winks.' "
I think the first question must be: Did you say that?
Judge BORK. NO. I think I wrote a letter to them, because I was
I think I didI was quite furious about that statement that I felt
free to ignore that law and enforce my economics. And when I saw
that, I was quite angry.
Senator SPECTER. Did they publish your letter?
Judge BORK. I do not know. Does anybody know if I have a
letter? We do not know.
Senator SPECTER. Are you sure you wrote a letter?
Judge BORK. I either did that or called somebody, because I
was
Senator SPECTER. Whom did you call?
Judge BORK. I do not know. It might have been Betty Bach, who
ran the conference, or it might have been the reporter.
But in any event, I have never
Senator SPECTER. But you are not sure?
Judge BORK. Well, I will have to check it. But the fact is
Senator SPECTER. I would like to know if you made a contempora-
neous denial of that.
Judge BORK. All right. Well, I may even be able to find a tran-
script of the speech, because that is the reporter's interpretation of
what I said.
Well, I do have here a transcript of the speechI guessexcept I
do not think this is
Senator SPECTER. Judge Bork, I did not see that speech among
those you provided to the committee.
Judge BORK. Well, I did not see it before myself, either. Maybe
somebody found it with a nexis search or something. We will pro-
vide it to you.
I do not want to go through it now. It would take the rest of your
time if I did. But I have never taken the position that I am free to
apply my economics no matter what the law says.
The reference to the "wink"oh, here is a letter.
Senator SPECTER. Good.
Judge BORK. "TO the Editor: The reporting of my remarks at the
Conference Board seriously misrepresents my views of my obliga-
tion as a Judge. I most definitely did not make it 'plain that I felt
free to apply my economic theories whatever the antitrust law
says.' I stated emphatically that as a lower court judge, I have an
absolute duty to follow the law as laid down by the Supreme Court.
At most, a lower court judge can give us reasons for doubting the
usefulness of a rule. That practice is both common and benefi-
cial * * *," and so forth.
And I do not want to read the whole letter, because it goes on for
a while, but I will provide you that, too.
But the reference to the "wink" is one I have made before, and
the reason I said thatand I think I said it in the bookI was
once discussing what struck me as a peculiarly outrageous Robin-
son-Patman Act decision by the Supreme Court in which they in
827
effect made competition impossible in a local marketand a deci-

sion that everybody has criticized. And I was discussing it with a
young man who had just left a clerkship on the Supreme Court,
and he said, oh, the Justice thinks sure, the Act says competition,
but Congress passed it with a wink; they did not mean competition,
they meant protect competitorsprotect people from competition.
Well, I thought that was a terrible judicial role. I think you do
not enforce a congressional "wink" because Congress should pass
its statutes so the people know what is being passed
Senator SPECTER. Judge Bork, what is a "congressional wink"?
Judge BORK. This Justice apparently thought that Congress said
competition, but he had some reason to believe when they said it,
they did not mean it.
Senator SPECTER. YOU are saying some Supreme Court Justice
said he thought that Congress passed something with a wink?
Judge BORK. That is what I heard.
Senator SPECTER. DO you think Congress passes laws with a
wink?
Judge BORK. NO, no, I do not think so. And I think furthermore
that if a Justice thinks that, he ought not to accept the wink; he
ought to read the statute and apply the statute that they passed.
That is what I was saying in this thing. I said it in the book.
Senator SPECTER. SO you were misquoted on the article which ap-
peared in the Times?
Judge BORK. I neverSenator Specter, not only is that inconsist-
ent with my entire philosophy, but I would never be unintelligent
enough to run around, saying I am free, I do not have to apply the
law.
I think there are people out there who are worried about what
they call the "Chicago school of economics," and there are people
in the "Chicago school of economics"it is not a Chicago school; it
is just basic price theorythere are people who think that econom-
ics governs everything, or almost everything. I am not one of them,
and I
Senator SPECTER. Were you ever?
Judge BORK. NO. I used
Senator SPECTER. Close?
Judge BORK. NO. I used to think that economics governed mar-
ketplaces, but I used to think that by analogy, you could take sort
of a libertarian position with respect to social processes, too, and
governmental processes. The analogy, I have given up. I do not
think it makes any sense.
Senator SPECTER. Well, I have seen some of your writings on
that, and perhaps we will have time to get to it. It is a fascinating
field.
Judge Bork, I do not disagree with your interpretation of anti-
trust law, and I do not intend to pursue it any further. The limited
point that I seek to make here on the references to the antitrust
laws is the difficulty of finding congressional intent and the wide
range of judicial discretion which necessarily applies, and the prac-
tical effect of a judge's role is to apply that discretion and not to be
able to really find what legislators' intend, and to try and make
some sense out of what a judge may conclude to be a pernicious
law, and to try to make some sense out of conflicting legislators'
828
statements in the Congressional Record; and that a judge's role
goes much beyond interstitial legislation, as the term is used, to
really try to pull the whole picture together; and that that is the
tradition of the law, and I think appropriately so. And I think your
antitrust writings make a lot of sense, and I think that that is
what judges have to do.
But I do think that as you apply that beyond the antitrust field,
into other legislative lines and into constitutional lines, there is a
broader traditional role of the judge in applying values to the
needs of the nation against, again, your word, beyond what you can
find in some specific intent.
So let me move on to the subject of federalism, which you have
written about extensively and spoken about. This involves the ques-
tion of federalism as it relates to a more central topic which has
been a very important one in these hearings, and that is your
statement that the time has passed for upsetting certain constitu-
tional doctrines, which are too deeply embedded in the fabric of the
Nation to change those doctrines.
I think that is a very important point, Judge Bork, because it re-
lates to your own interpretation of original intent, and on some
lines, where you think that even though original intent was fol-
lowed, as you gave the example of the commerce clause, it is too
late, and it is part of your judicial philosophy which you articulate
on stare decisis, which may apply to other cases, and you enumer-
ated a string of values and criteria which would not upset estab-
lished cases, trying to give some regard for expectation, stability in
the law, and so forth, as you have testified to.
A statement that you made in a speech in 1986, last year, raises
some question about that, and I just want to ask you that. This is a
speech on federalism which was delivered at the Attorney Gener-
al's Conference in Williamsburg January 14th to 26th, 1986, and I
am referring now to page 10. You say this: "The protection of fed-
eralism from national legislative powers is more difficult. There
are so many laws on the books, so many Supreme Court decisions
upholding them, and the federal government is involved in so
many areas, that a new, sharp-edged definition of national powers,
such as commerce, taxing and spending, would create chaos politi-
cally, economically and socially." And I will leave some out here
it does not apply to the meaning.
Then you go on to say: "Dees it mean that we must give up judi-
cial protection of federalism? It was this thought that for a time
led me to think that we had passed the point of no return. I am no
longer so sure, though. I am no longer so sure. So what I am about
to say is to be understood as tentative and indeed, speculative."
Then I omit some material, again not germane.
Then you say: "If federalism is to receive judicial protection, I
think courts will have to admit that bright line tests are unavail-
able; that prior cases are irreconcilable, and that decisions will
turn on such matters as the degree of federal intrusiveness and the
vitality of States as policymakers." Then I leave some out.
"Would this be unacceptable judicial activism? Perhaps not.
There is nothing wrong with judges being active in the defense of
real constitutional principles." Close quotes.
829
Now, my question is this. If you go to rockbed, as you articulate
it, in the commerce powerand you have written about this repet-
itivelyand if you are not so sure last year that you may not be
able to revitalize judicial activism which, as you say, is appropriate,
and I agree with you, in defense of the Constitution and articula-
tion of constitutional principles, my questions are, first, do you be-
lieve that it is now not too late to revive the questions on the com-
merce clause and federalism? And, if it is not too late there, per-
haps it is not too late anywhere, in any of the cases, to go back,
take another look, and change the Court interpretations of the
Constitution.
Judge BORK. That is a good question, Senator, but none of this
suggests rolling back any commerce clause decisions. And the sen-
tence, right after you say, "The decisions will turn on such matters
as the degree of federal intrusiveness and the vitality of States as
policymakers, perhaps a presumption can be established against
federal invasions of areas traditionally reserved to the States,"
what I was thinking about is, you know, we have not yet said that
the commerce clause could be used to enact a national law of di-
vorce, or to enactmaybe it canbut there are certain local,
moral mattersdivorce, marriage and so forththat it has been
traditionally thought simply was not the business of the federal
government.
Now, that would be a considerable extension of anywhere that
Congress has gone yet with the commerce clause. And as I said,
this was tentative, but it may be that there are some local matters
so traditionally reserved to the States that the commerce clause
should not go there.
But I had no intention of rolling anything back that has been
done.
Senator SPECTER. Well, Judge Bork, the thing that concerns me
about your statement there, and the reason I raise the question, is
that you had written extensively and spoken extensively prior to
that 1986 speech about you cannot unscramble the eggs on the
commerce clause; it is just too late.
Judge BORK. YOU cannot.
Senator SPECTER. But here, you come up in 1986, and you say you
are not so sure. And I just want to be sure that you are sure.
Judge BORK. I am sure, Senator.
Senator SPECTER. Okay.
Judge BORK. But I am sure of this. I would not for a moment go
back and reverse the cases that give Congress the power that it has
exercised. There may be some things, like marriage law or divorce
law or something of that sort. Justice Holmes said in his dissent in
Northern Securities that of course the Congress could not make
laws about marriage and divorce under the commerce power. I do
not know if they can now or not. But I was speculating that there
might be a presumption against reaching into that area. I have no
idea. But I am not going to undo anything that has been done.
Senator SPECTER. Judge Bork, I now want to move to the ques-
tion of the executive/legislative conflict. This is a subject that Sen-
ator Byrd questioned you about extensively yesterday, and I had in-
tended to ask you about Barnes v. Kline and the consideration that
830
we ought to renounce outright the whole notion of congressional
standing, but that has been done in some detail, so I will move on.
But at the outset, I want to raise a question that troubles me as
to the appropriate degree of deference which the Senate should
give to a Presidential nominee. And this is a matter, like judicial
philosophy, which is widely debated. And as I said in my opening
statement, you had made the comment to me when we sat down
early on that you thought judicial philosophy was appropriate for
discussion, and you have certainly proved it in the course of the
past five days.
There has been a general thought that there is a certain defer-
ence owed to the President under our advise and consent function,
and of course, each Senator has to decide for himself as to what
that means. And a little different consideration has crossed my
mind on the advise and consent function as it relates to legislative/
executive conflicts, because here we arethe President nominates,
the Senate confirms, and if the Court, and if the judicial nominee
has a position which is likely to upset the balance between article I
powers, the Congresswe still are article Iand article II powers,
the executive, then perhaps that kind of deference, if any exists, is
not owed. And that is a theoretical issue which I have not found
any writing on.
I would invite any observation you would care to make, but I
would understand if you would not care to make an observation,
because it may really be a question solely for the Senate. But if you
care to make an observation, I would be pleased to hear it.
Judge BORK. Well, I do not know that I have any, or could prop-
erly give any advice to the Senate or to a Senator on that subject.
However, I think my case is not one in which there is any unusual
view of the relationships between the President and the Congress.
Senator SPECTER. SO we do not have to deal with the law on the
subject, because the facts do not fit the doctrine?
Judge BORK. I think that is right, Senator.
Senator SPECTER. Okay. Let us go to the facts, then.
Senator SPECTER. The first question is the War Powers Act.
[Laughter.]
Judge BORK. I am sighing, because I cannot find that paper.
Senator SPECTER. YOU can have my copy. It is very short. All of
these deep issues are expressed in very brief terms.
In the Wall Street Journal, March 9, 1978: "As expiation for
Vietnam, we have the War Powers resolution, an attempt by Con-
gress to share in detail decisions about the deployment of U.S.
armed forces in the world. It is probably unconstitutional, and cer-
tainly unworkable."
Now, this is an issue which we do not care very much about. It
has not been on the Senate floor since yesterday afternoon, and we
took up the question as to whether the War Powers Act was appli-
cable to the Persian Gulf situation. I voted that it was, and I feel
very strongly about the limits of executive authority and of bal-
ance.
In 1984, there was an effort made to frame a test for constitu-
tionality of the War Powers Act. Senator Baker participated in it; I
went to the trouble of drafting a complaintI had not done that
831
for a while. And we talked to the Department of Justice about
framing a case. And the standing issue, we think we can get by by
legislation; the case in controversy, we are not so sure about. You
fellows, the Court, you fellows, if confirmed, have the final word on
that.
But there is a real hot argument about the War Powers Act, as
to whether it is constitutional or not. It says if U.S. personnel are
in imminent hostilities, danger of hostilities, then the President
has to report to Congress, and there are a whole series of proce-
dures to be followed because the Congress has the authority to de-
clare war, and it has been taken over by the executive branch.
In 1984, we had extensive debates on the subject, and I asked
Senator Percy, who was managing the administration's bill, about
whether Korea was a war, and he said yes, it was; and was Viet-
nam a war, yes, it was. And Congress did not declare war, and the
Congress came back with the War Powers Act, and the President
has made submissions choosing a form of language not to recognize
constitutionality.
Now, as to the issue of standing, isn't the Congress entitled to
have the Court make a decision where the President ignores the
Act? We may be right, and we may be wrong. But take the stand-
ing question first. Why shouldn't we have a right to have the Arti-
cle III Branch, the Supreme Court, decide the case?
Judge BORK. I would like toI do not think I had better discuss
that particular case, because that is in the courts, I think. I think
it is in my court right now, the D.C. Circuitisn't it?
Senator SPECTER. NO. It is in the district court. It will never get
to the circuit court in time to be anything but moot.
Judge BORK. Oh, all right. But even so, I think I should not dis-
cuss standing in a particular case that is in fact a live case.
Senator SPECTER. Well, I think that is fair, Judge Bork, and I will
not press the issue. I bring it up because you have written so exten-
sively on it.
You are a very different kind of a nominee, because on all of
these questions you have stated an opinion. Senator Simpson
agrees. And I ask you these questions only because you have writ-
ten, and you have made sweeping declarations about renouncing
congressional standing.
Judge BORK. Well, yes
Senator SPECTER. Let me ask the question in a different way, to
give you a chance to respond.
Here, you have the War Powers Act. On the procedure, from
what I read about you, I do not think you will give us standing.
Maybe I have a conflict of interest here, as a litigant. I have not
gotten involved in any of the cases, but as a potential litigant. But
then there is the doctrine of necessity, so we have to either confirm
you or not.
But we have reason to believe that you are against us on the
merits
Judge BORK. On the War Powers Act?
Senator SPECTER. War Powers Act, yes; you say it is probably un-
constitutional.
Judge BORK. Well
832
Senator SPECTER. Let me finish the question. Then we have
reason to think you are against us on the procedure. Now, given
the concern of the U.S. Senate for having this law interpreted,
number one, and then interpreted as the Senate sees it, why should
we confirm a nominee who is likely to find against us on both
those important grounds?
Judge BORK. Well, I do not want to tell you why you should con-
firm me, Senator.
Senator SPECTER. Well, I cannot ask you the question as to
whether it is unconstitutional that we have standing
Judge BORK. Let me discuss what I meant back then, when I
wrote that one sentence leading into a different subject.
The War Powers Act at the time, I thought, had a problem be-
cause it has a legislative veto in itas I recall itI have not
looked at the War Powers Act for
Senator SPECTER. It does.
Judge BORK [continuing]. Yesand I did not really have any
trouble when I looked at it, a long time ago, with the reporting or
the consulting aspects of the Act. I thought that on the part about
controlling the introduction of troops, or withdrawal of troops, and
so forth, that that could be constitutional in some cases and possi-
bly unconstitutional in others. Let me describe what I mean.
The ultimate power in this society about war and peace is Con-
gress. It can declare warit can not only declare war, it can refuse
spending, appropriations authority.
Senator SPECTER. Judge Bork, realistically, what has happened
on that?
We really, in the Congress, do not have the power to declare war
anymore, given the realities of international events today. When
the President acts in Lebanon, in Grenada, in the Persian Gulf, the
reality is that the day of Congress declaring war is gone.
On the spending issue, the reality there again is that Congress
lacks the power, because once the President has dispatched a fleet
to the Persian Gulf, it is unthinkable and impossible for the Con-
gress not to fund that operation.
If we do not have authority under the War Powers Act to require
a certain Presidential response and then to say no to the President,
where does the Congress in 1987 exercise its congressional author-
ity to declare war?
Judge BORK. Well, maybe you can do it under aspects of the War
Powers Act. I was reallyI see your point, Senator, and it is a good
point. I do not mean to dispute it. I had thought it would be a little
easier to tell the President, "You have two weeks to, if you want
to, get those ships out of there," and after that, no more money
may be spent.
Senator SPECTER. Who is going to tell him?
Judge BORK. Well, I assume the Congress would.
But anyway, let me go on to the War Powers Act, because I was
leading into a somewhat different point. I was merely saying that
the ultimate question should be for Congress, about hostilities and
war and so forth, but there are tactical decisions to be made.
To take an example which I have given before, I think Congress
could have told the President to shut down World War II, clearly.
But I think if Congress had told him he had to surrender the air-
833
borne troops at Bastonne, I think that is a decision for the Presi-
dent, not for the Congress. That is a tactical decision, and he is the
Commander-in-Chief.
Now, my only thing about the War Powers Actaside from the
legislative veto aspect, which I do not know about anymoreit
may be that if it leads to micro-management of tactical decisions in
a conflict by Congress, then I think there is a constitutional prob-
lem.
Now, maybe it can be interpreted so that that problem never
arises. I do not know. But that is all I meant in this brief one sen-
tence as I was leading into something else.
Senator SPECTER. But Judge Bork, the concern that I have arises
on the balance of your writing on executive/legislative relation-
ships. And I would turn to the writing you made in the American
Journal of International Law, where you deal with the question of
the Cambodian incursion, as you characterize it.
You say: "I think there is no reason to doubt that President
Nixon had ample constitutional authority." And I am going to
come to other questions on intelligence and on other matters, and
again and again, you come down, it seems to me, very squarely on
Executive authority.
You take the question if independent counsel, which is a big
issue right now, for all the reasons that you know. And your testi-
mony back before the 93d Congress, as it appears on page 450 of
hearings before the Judiciary Committee, you say that the estab-
lishment of a Special Prosecutor outside the executive branch
would ultimately be held to be unconstitutional.
Judge BORK. Well, let me talk about that, Senator. I thought that
was true. Of course, the statutes involved there were very different
from the statute we are operating under nowwhich I have not
looked at particularly, but I know it is very different. And what I
said was that a Special Prosecutor outside the executive branch
would beI think it would be. I think that thingthose bills I was
talking about, I think, contemplated courts appointing, controlling
and removing Special Prosecutors, which I thought was not a Judi-
cial function at all.
Now, I think I also testified, Senator, that in terms of congres-
sional protection of a Special Prosecutor, it would be hard for Con-
gress to protect him if he was an official nominated by and con-
firmed by the Senate, because the President's power over such offi-
cials is at a maximum. But I think I also testified that probably
Congress could protect a Special Prosecutor by statute so that he
could only be fired for cause, if he was a subordinate officer ap-
pointed by a department head.
So I did not say you could not have a Special Prosecutor. I just
said under certain circumstances it would be difficult.
But may II want to say that the impression that I always rule
or side with the President is wrong. I have discussed at length, I
think, the episode that led me to tell the Attorney General that I
would not argue a pocket veto case, and that I filed a 12-pageor
8-page or whateveranalysis with the Attorney General, and he
forwarded it to the President, and we got President Ford to say he
would not use a pocket veto when Congress had left somebody
there during an adjournment or a recess to receive a return veto.
834
But also, I sat on a case in my court, the City of New Haven
case, in which the President was claiming the power to impound
funds, and that power to impound was in the statute, but also
there was a congressional veto. I voted with the majority that since
the congressional veto that Congress had was invalidated by
Chadha, the President's power to impound was lost, because the
Congress would never have given the President the power to im-
pound if it had not had a legislative veto. So I voted with Congress
and against the President on that one.
My record is not one of unvarying support for the executive
branch.
Senator SPECTER. Judge Bork, I have had a note from the Chair-
man that it is time for a short break, so I will yield back to the
Chairman at this time.
Senator KENNEDY. We will have a 10-minute break.
[Short recess.]
Senator KENNEDY. The Senator from Pennsylvania, Mr. Specter,
will be recognized.
Judge Bork, when we broke for the short recess we were talking
about the issue of executive and legislative authority and just an-
other question or two on that subject.
You wrote about the subject of reforming foreign intelligence
again going back to the Wall Street Journaland you commented
about the bill, the Foreign Intelligence Surveillance Act, where the
Congress was seeking to impose certain restraints upon executive
authority. You referred to the congressional action as a, "certain
lightheadedness.''
The issue is likely to come up soon on the matter of cover intelli-
gence where the Intelligence Committee is trying to work out a
charter with the executive authority on what is timely notification,
a subject which was of very much concern in the recent Iran/
Contra hearings and some of us think really led to the execution of
the sale of arms to Iran because there had not been notification to
the Congress, and had there been oversight it would have been
stopped.
Recently, the President wrote to the Intelligence Committee
and this is just within the past few weekssaying that there would
be new procedures; except in the most exceptional circumstances
timely notification will be given within two working days.
I am sure there is going to be a controversy as to what are excep-
tional circumstances and I for one believe that this kind of a com-
mitment has relatively little value because it leaves it up to the ex-
ecutive to decide what are exceptional circumstances. What I am
looking for is the reassurance that if you are confirmed and if any
of these cases get to the Supreme Court through the "standing
morass" issue, that as an Article III Justice you will give us a fair
shake.
I do not know how to articulate it any more directly than that.
Judge BORK. Well, Senator, I do not know how to say anything
more than I will give you a fair shake. I will give everybody a fair
shake.
Senator SPECTER. Well, I raise the question because of the writ-
ings which you have done but I think that these hearings are a
835
good occasion to focus for just a moment or two in our process of
checks and balances to give you at least this Senator's view of the
importance of having the Court make an ultimate decision in some
of these areas.
I am not proposing that all of these are susceptible to judicial de-
cision and I understand the political process and the tug of war
and I believe that that has a lot of applicability but I would restate
what Senator Byrd had articulated yesterday about the necessity in
some situations, short of missiles being in the air, for the Supreme
Court of the United States to take these cases, and if the Congress
and executive are irretrievably at loggerheads, for you to make the
decision.
Judge Bork, now I would like to move on to the philosophical
area that you have written about and talked about a great deal,
and that is egalitarianism. I think it is very relevant on an under-
standing as to where you were heading on the equal protection
clause of the 14th amendment in terms of application. You have
questioned the desirability, as I read your writings on an egalitari-
an society. And one of your statements I would like your comment
about, the speech at Carlton College.
You designatedand the materials provided us is 1977 or 1978
and at page 7 you say the following:
Though it is obviously false, the trend of legislation continues to place increasing
burdens upon business in the name of a wide variety of social ends, heavily freight-
ed with the goal of redistribution, environmentalism, consumerism, energy control,
racial equality, safety and health, investor protection, small business welfare and so
on. Though each of these has much to be said for it, each has been over done and
the costs are making business much less productive than before.
Now, you have handed down opinions on the environmental pro-
tection area to the contrary as to what you have generalized about
here.
Judge BORK. Yes.
Senator SPECTER. But I would invite your comment as to whether
you can ever really conclude that it has been, quote, "over done,"
unquote, with respect to some of these values, especially the value
of racial equality.
Judge BORK. NO. I have no feeling that that has been over done,
Senator. I think what I was talking about there was that there
may be a lot of regulation which is desirable in and of itself, but in
the aggregate you may conceivably hamper business efficiency suf-
ficiently that nobody will be better off because we will be a poorer
nation.
I think I had just seen a study by the dean of the business school
which traced the decline in real constant dollars of shares of corpo-
rationsthat is, the Dow Jones Index should now be at around
4,000 or 5,000 if it had kept up with inflation. And I was just
simply saying that that may suggest that the aggregate total regu-
lation in the society may have damaged our efficiency and our abil-
ity to compete abroad and at home.
Senator SPECTER. Judge Bork, in a speech that you
Judge BORK. May I add, Senator, that has nothing to do with my
job as a judge. That was me talking in general about the society.
Senator SPECTER. Well, I understand that. But when you come to
apply principles of law and you do not have bright line tests and
836
you have wavering lines, as you have described them before, philos-
ophy may be the determinant factor in the ultimate decision by a
justice as you apply equal protection of the law with the fuzzy gra-
dations that have been the subject of discussions in these hearing
rooms for hour after hour after hour.
Does not the view that you express with some repetitiveness in
your speeches about an uneasiness or an opposition to the egalitari-
an principles, which you equate with permissiveness, really have a
very significant effect upon your own judicial philosophy?
Judge BORK. I do not think so, Senator. For one thing, I was
reallyI think when I am talking about these matters I am usual-
ly complaining about going too far toward equality of result. I
never have any problem with equality of opportunity. And I under-
stand that even more equality of result than free process would
give us is desirable. Some redistribution is desirable, and it is not
for me as a judge to judge the degree of redistribution.
As you say, on my present court I have repeatedly upheld regula-
tions of businessrepeatedly. And it would have been possible to
write those decisions the other way, but I would not have felt that
it was the law.
Senator SPECTER. Well, as a Supreme Court Justice you are going
to have considerably more authority and latitude than as a Court
of Appeals judge and that is why I raise the question, because it is
so dominant in the speaking which you have given. And repetitive-
ly the issue arises about your opposition to what you define as egal-
itarian principles.
You do not spell them out as they would relate necessarily to de-
cisions, but taking at look at the speech you made at Yale Univer-
sity on April 24, you talk about values as measured in the survey
are quite egalitarian and permissive.
Judge BORK. What is, Senator? I missed part of that sentence.
Senator SPECTER. YOU are talking about values as measured in a
surveya Public Opinion surveyand with some repetitiveness
you refer to theas you do here at page 5to the left liberal, and
from time to time your speeches refer to the press and to the pro-
fessorial ranks as having a very heavy orientation to the left. You
talk about that philosophically in terms of an egalitarian principle
and as permissive.
As you say at page 6: "Their values as measured in this survey
are quite egalitarian and permissive."
My question to you is, if you care to elaborate upon what you
mean here, what would be the predictability or your expectation as
you would apply this kind of a philosophy, if any, in the interpreta-
tion of equal protection of the law.
Judge BORK. I do not think there is any, Senator. What I was
saying here wasthere was a survey in the Public Opinion Maga-
zine in which in every election since 1968 over 80 percent, and
often well over 80 percent of people working in the media and the
press voted for the democratic candidate, which I thought was a
relevant statistic in this connection.
Senator SPECTER. YOU thought it was what?
Judge BORK. A relevant statistic in what I was talking about
here. But, you know, when I have faced the freedom of the press
the press has done very well. It does not affect my attitude toward
837
the press as a constitutional matter, and it does not affect my atti-
tude toward regulatory agencies. And as far as the equal protection
clause is concerned, I do not regard that as requiring equality of
result. I regard that as requiring equality of opportunity, if that
distinction makes any sense in that context.
Senator SPECTER. Judge Bork, going back to your Carlton College
speech, you have this sentence which is really illustrative of a fair
amount of your philosophy.
You say, quotethis is the bottom of page 10: "Men in democra-
cies"well, you quote De Toqueville on this, but with apparent ap-
proval"Men in democracies"well, you insert it in your writing,
I guess you are quoting De Toqueville"are well aware of the
danger of anarchy inherent in a condition of equality."
My question is, aside from your articulation of equality of oppor-
tunity, what impact does your overall philosophy of equality have
as you would interpret the equal protection clause of the 14th
amendment?
Judge BORK. None whatever. I have told this committee how I
would interpret the clause. I think what I was saying in this Carl-
ton speech was that if you try to enforce too much equality of
result through statute and regulation, De Toqueville said that
youthis is him: "You cover the surface of the society with a net-
work of small, complicated rules, minute and uniform, through
which the most original minds and the most energetic characters
cannot penetrate. The will of man is not shattered, but softened,
bent and guided."
I do not think we are on that road any more. I thought for
awhile that this drive towards more regulation of everything was
going to continue for a long, long time. I do not think it has.
Senator SPECTER. Then de-regulation came in in 1981.
Judge BORK. Even the state of regulation where it stood was less
worrisome to me than I thought what might be a continuing trend.
Senator SPECTER. Judge Bork, let me take up just one more philo-
sophical issue that you have written about and written about ex-
tensivelythere is not time enough to go into other mattersand I
would refer to the speech you made at the University of Chicago on
November 13, 1984.
This picks up a thread which you write about with repetitiveness
on John Stuart Mill and his book on liberty and the privatization
of morality away from governmental regulation. Picking up at
page 10, you write this:
One thinks of developments in free-speech doctrine in which it has been held that
government may not, for example, deal with obscenity and pornography except in
the most extreme cases because, as one opinion puts it, cne man's vulgarity is an-
other man's lyric
The Justice Harlan quotation that you referred to otherwise.
Then you go on to write:
One notes in the rise of the so-called right-to-privacy cases which deal mainly
with sexual morality and which generally conclude that sexual morality may be reg-
ulated only in extreme cases. All of these trends, from interpretations of the reli-
gious clauses, to readings of the speech clause, to the privacy cases share the
common theme that morality is not usually the business of the government but is,
instead, primarily the concern of the individual. Whether or not so intended, these
cases may be seen as representing the privatization of morality.
838
And then you go on to talk about John Stuart Mill's "On Liber-
ty" and as I read your writingsand I am going to have to boil this
down because of time limitations and ask you for your interpreta-
tionyou seem to me to object to the privatization of morality and
you look for more governmental authority on matters like pornog-
raphy as opposed to hardcore obscenity, which the first amendment
cannot reach. And you look to more governmental regulation on
matters, as you put it, of sexual morality.
You do not like the stringent application of the establishment
clause and the free exercise clause which you come to later on page
11, that, as you articulate, the principles of majority ruleMadis-
onian majoritarianism, as you write so frequentlythat you object
to the interpretations of the law privatizing morality as it would
apply in those casessexual conduct, speech, pornography and reli-
gion.
The thrust of my question is, where does that leave you in terms
of sitting on the Supreme Court, if confirmed, on enforcing majori-
ty rule in a context where the Court has cut back very sharply on
State legislative activity in all of those lines?
Judge BORK. Well, Senator, I did not denounce those things. I
said that these were aspects of a privatization of morality. It is a
trend, I think.
Senator SPECTER. Well, you speak aboutyou do denounce Har-
lan's "one man's vulgarity is another man's lyric."
Senator SPECTER. And you do denounce the privatization of mo-
rality in terms of excessive sexual conduct, and you do not come to
a conclusion on the religion cases. You raise the question.
Judge BORK. Well, let me say about thatI guess our time is
short so I will try to do it briefly. As I said yesterday, it seems to
me very odd to say that a reason why a community may not
punish what was an obscenity, I think, is that one man s obscenity
is another man's lyric. That is an odd statement. That means that
if anybody thinks it is a lyric you cannot punish obscenity.
Senator SPECTER. NO, only if the Supreme Court thinks it is.
Judge BORK. Well, I know. But the reason they gave was that one
man's lyric is another man's obscenity. On the establishment and
free exercise clauses, I did not criticize those at all. All I said was
and it is a common observation that has been made by law profes-
sors and justicesis that they have managed to get them into a po-
sition where they conflict with each other. And it just seems to me
as a matter of doctrine it would be nice if the two major clauses
about religion did not conflict.
Senator SPECTER. YOU do not make that point in this speech.
Your Yodell point on the Supreme Court decision you make other-
wise but not here. In this speech you are really looking to the con-
cept of privatization and morality which does not give the majority,
the State legislative bodies, authority to deal with religious issues.
Judge BORK. IS this the speech atoh, yes, the University of Chi-
cago, Religion in the Law. I think in that speech later on, Senator,
I think I explicitly said, one of the odd thingsI know I said it at
Brookings and I think I said it hereand the reason I say the same
thing so much is not that I am obsessed with the point Senator. It
is that I give speeches and I cannot keep writing a new one every
839
time and I tend to shuffle the paragraphs around and give the
same speech.
Senator SPECTER. Those of us who read your 80 speeches were ap-
preciative.
Judge BORK. But in any eventwell, I do not see it. I cannot find
it right here and I do not want to take up your time hunting for it.
Senator SPECTER. Judge Bork, I really do not think you make
that point here about the conflict
Judge BORK. Well, I meant to.
Senator SPECTER [continuing]. Between the free exercise and the
establishment clauses. I think the point you are really making
thereand you do not come to a conclusion but you are suggest-
ingthat the concerns you have about the privatization of morali-
ty which you expressed in "one man's lyric is another man's," et
cetera, apply in the field of religion as well.
Judge BORK. NO. I do not think they apply in the field of religion
except for the fact Ithe reason I am sure I said this about the
conflict between the clauses is that I was asking how they could
have got themselves to a point where, under the free exercise
clause, a State was required to do what if it had done on its own
would have violated the establishment clause.
On page 7 and 8, Senator, of that talk I discussed the case of Wis-
consin v. Yoder and I was making the observation which many pro-
fessors have mademy speeches get less original as I get busier; I
tend to use other people's thoughtsI made the point which others
have made that when the Supreme Court said that the free exer-
cise clause required Wisconsin to make a special exception for the
Amish to let their school children out early before they were 16,
that was an exception which if Wisconsin had made for the Amish
in its statute book would probably have been held to be a violation
of the establishment clause.
It is a conventional point and it has been made by others many
times before.
Senator SPECTER. I am familiar with that point, Judge Bork, but
you move from that point to another point when you go three or
four pages later to pages 10 or 11. And then you take up the con-
cept of privatization of morality, which is different from the con-
flict of establishment and free exercise.
Senator SPECTER. It is plain that you have objected to Harlan's
conclusion about one man's vulgarity is another man's lyric under
the privatization concept.
And then you move from that into the discussion of the,
". . . stringent application of the establishment clause"this is at
page 11"one might expect then the privatization by a stringent
application of the establishment clause to keep the community
through government from advancing religion, and an equally or
almost stringent application of the free exercise clause to permit
the individual maximum freedom in his beliefs," which leads me to
the inference that you do not like the stringent application of es-
tablishment or free exercise, although I readily concede you do not
say so. It is a suggestion.
Judge BORK. I not only do not say so, Senator, what I was doing
here was suggesting that perhaps a general mood of privatization
840
of morality was leadingI was trying to explain how could these

two clauses have gotten themselves in a condition where they con-
tradicted each other. That is all I was trying to explain.
Then I go on to say that the Bill of Rights is itself a way of priva-
tizing some aspects of morality, and that is fine.
Senator SPECTER. Judge Bork, as I was afraid I was going to run
out of time, I have only got four minutes left. So let me just make
a few concluding observations.
But I want to compliment you for being so cooperative with this
committee. I believe that these hearings will set a new standard for
Supreme Court nominees, which I think is really important. Last
year, on the record, I expressed concern about the proceedings as to
Justice Scalia not being able to get into issues.
You came to talk to me for more than 3 hours privately. We
were interrupted on the first occasion by a vote, and I have had the
opportunity to question you for more than 3 hours now. Not that it
is necessarily enough, but you have been very generous with your
time and, more than the generosity with your time, you have been
in responsiveness.
I think you have really dealt with the questions as best you can
on very complex subjects, not to say that all the answers are going
to please all of us, and I think you have had tough questions, per-
haps questions at the beltI don't think that they have been below
the beltby the committee. Depending on your perspective or
someone's perspective there might be some differences to that, but
you have tried to respond to the questions.
The hearings present a real opportunity for the Senators to tell
you what is on our minds, and to tell you what is on the minds of
our constituents, as we really expressed them, and the one opportu-
nity we have. And I know it is an experienceI will remember it,
and I am sure you will remember it.
And when you talk, as you did, about a powerful argument from
a strong tradition, perhaps that will have some influence as you
consider some of the doctrines, as you apply them in the future
on the Supreme Court, if confirmed; and on the District of Colum-
bia Court, if you are not confirmed.
Judge Bork, I have not made up my mind on the confirmation
process as of this moment. At the outset, I was very concerned
about what I considered to be a sharp variance on your writings as
opposed to the tradition of U.S. constitutional jurisprudence.
You have made significant shifts in accordance with this testimo-
ny which I think, candidly, has to be evaluated. We don't expect a
man to be in concrete on his thinking, and I understand that what
you had written in the past was speculative and tentative, and I
respect that. And I also respect the consideration that law profes-
sorsyou, as a professor, and those today and those in the future
have to be free to write in a vibrant, lusty manner without being
concerned that should they come to the Senate Caucus Room for a
confirmation proceeding that they will be ruled out of consider-
ation for the Supreme Court of the United States.
The issue of equal protection of the laws is a very important one,
and I think thatand I know that your testimony in this room is
materially different from what you had written. You had written
that equal protection applied only in a racial context, and you have
841
testified here today about your willingness to apply it to women
and to aliens and beyond race and ethnic consideration.
We have questioned you at great length, and there are few ques-
tions and answers that I am going to reread, and that is one area.
You have testified extensively on the first amendment, and I have
questioned you extensively on the issue of original intent and
whether you really can use original intent to decide the cases and
whether you really can use legislative intent; and my suggestion to
you is that they only take you so far, and beyond that you can rely
on Cardozo or Frankfurter to effectuate the values and the tradi-
tion of the people without being able to pull out a specific constitu-
tional right which would guarantee privacy. And of course, you
have to decide that, if you are confirmed.
If I had to boil down, perhaps, the crux of an issue which I have
to think about, and we look for predictability, and you pose a very
unique situation here because you have written more extensively, I
believe, than any nominee who has come to this position. And we
search for predictability, and that is our job.
And personalities have to be put aside. On this Senate Judiciary
Committee we have a responsibility to uphold the Constitution, just
as you do as a judge, and the personalities are all out.
And there is a question of what risk is involved, risk to the Con-
stitution and risk to the Court, and that is a judgment which has to
be made. When you and I talked extensively about Brandenburg v.
Ohio and we traced the history of the Holmes opinion on clear and
present danger, and we went through Abrams and Gitlow and
Dennis to Brandenburg and to Hess, and you said that you accepted
the principle of Brandenburg and you would apply it but you dis-
agreed with the philosophy.
And a concern I have is that when the next set of facts come
upand they aren't going to be exactly like Brandenburg because
no two cases are exactly alike on the factsif you disagree with
the philosophy, how will you decide the case. And you answered it
I think the only way a man can answer it: You are going to do
your best to uphold your oath of office and to uphold the Constitu-
tion and to uphold the principle of the Brandenburg case.
I don't know that there is any better answer that any man can
give, and, as a Senator on this panel, I have to weigh that. That
really is an ultimate consideration.
In closing, I would call your attention to the case of Turner v.
Saffley, which is a decision of the Supreme Court of the United
States handed down on June 1, 1987, just a couple of months ago. It
involves the right of an inmate marriage regulation in the Missou-
ri jails. And it is an opinion written by Justice O'Connor and it
turns, as I read the case, on due process grounds.
And it holds that the Missouri inmate marriage regulation is
unduly restrictive, and it is joined in by Chief Justice Rehnquist,
Justice Scalia, Justice White and Justice Powell.
I would say that to reach the level of a constitutional right on an
inmate marriage regulation goes a fair distance beyond what is ar-
ticulated in the Constitution of the United States. And I would
hope that, if you are confirmed, that there will be a broader view
than specifically articulated rights in the Constitution, the Cardozo
view, the Frankfurter view, the O'Connor view, even the Rehnquist
842
view and the Scalia view; that it is really the needs of the nation
which you articulate and you will accept. And the commerce
clause, I would hope as a Justice you would accept and articulate,
if confirmed, in a broader range of cases.
I am not saying how you decide them because you may decide
the right of privacy doesn't extend to abortion. But the authority of
the Court to decide these constitutional questions and the recogni-
tion of rights which are not spelled out in minute detail would be
your lodestone.
Thank you very much, Judge Bork. Thank you, Mr. Chairman.
Judge BORK. Senator, may I just say one word? I agree with a
great deal of what you say, I just want to talk aboutyou talk
about significant shifts. I really haven't shifted that much. I have
told you where I have changed my mind, explicitly political speech,
and so forth.
I think the difference is my role. As a judge, I accept lines of
precedent that I criticized as a professor, and that is a shift in my
role rather than a shift in everything I have ever thought.
Senator SPECTER. Thank you very much. Thank you, Mr. Chair-
man.
Senator KENNEDY. Judge Bork, you asked us to judge you on
your record as judge rather than on your record as a professor.
And, as you told Senator Thurmond yesterday, and I quote: "In the
classroom, no one gets hurt; in a courtroom, somebody always does,
and that is a wholly different function than being a professor."
It appears that in your courtroom ordinary Americans have fre-
quently been hurt. We heard about the sterilization case yesterday,
and I would like to ask you briefly about two other cases.
The first is the Bartlett v. Bowen case in which you ruled that a
senior citizen could be kept out of court when her medicare bene-
fits are unconstitutionally denied. Josephine Newman, of the Chris-
tian Science faith, suffered from a terminal illness which required
skilled nursing care. She died and the executor of her estate filed a
medicare claim, and the claim was denied because she had earlier
received medicare benefits for a previous stay in a Christian Sci-
ence facility.
Her executor, named Bartlett, brought a lawsuit claiming that
the denial of benefits violated her first amendment right to the
free exercise of religion, and your court ruled that her estate was
entitled to pursue her claim in federal court and that the medicare
law was not intended to stop senior citizens from taking their con-
stitutional claims to court.
Judge Bork, you dissented from that decision and ruled that a
sick, elderly American could be denied all access to a federal court
to challenge an unconstitutional denial of her medicare benefits.
My question is a simple one. Aren't all Americans, including
senior citizens, entitled to their day in court?
Judge BORK. They certainly are, Senator Kennedy. It should be
said that I didn't deny that woman access to court. I wish she had
had access to court. The statute passed by Congress said if you had
a claim for less than $1,000 you could not go to court. That seemed
to me very clear. It is flat on the face of the statute, and there is
an ancient doctrine of sovereign immunity when the suit is against
843
the Federal Treasury that says Congress may deny access to courts
to make a claim against the Federal Treasury.
I would have been delighted to hear that case if the statute
hadn't said she had no right to bring it.
Senator KENNEDY. Well, the fact is that there is a cut-off amount
of $1,000 approximately, but the case was raised under a constitu-
tional issue, under the free exercise clause. The court majority
ruled that the Congress did not cut off the judicial review when
constitutional claims were at issue. That is what the majority
ruled, and I quote:
"Challenges to the constitutionality of the Medicare Act itself
may be reviewed in federal court consistent with congressional
intent as expressed in the Act."
So the majority of the court found that the constitutional issues
were sufficiently significant and important to consider, rather than
the limitation of $1,000, which is written into the law.
Judge BORK. I would have been delighted to do that, Senator,
except the statute was flat, no review, and the legislative history
showed no intention to make an exception for constitutional
claims. And I thought it was an exercise of Congress' power of sov-
ereign immunity.
I think most of our full court agreed with me because six judges
voted to rehear that case en bane. Then one judge later said it
wasn't important enough and shifted his vote, so we only had five
votes to hear it en bane.
But that is, you know, if a statute that is flat, $1,000 or no
review and no legislative history indicating a contrary intent, must
be read to have an exception, I can't imagine a cut-off statute that
will ever be upheld.
But, I mean, you know, it is up to Congress. If they want to say
unless it is a constitutional claim, I will be delighted to hear it.
Senator KENNEDY. Well, clearly the majority drew the conclusion
that it was the intent.
Judge BORK. Oh, yes, the majority did.
Senator KENNEDY. That is what a majority of the court decided,
and I think it is quite clear that that is what Congress had intend-
ed.
Now I would like to ask you about your ruling on worker safety
in the Prill case. Ken Prill was a truck driver with a good work
record. After complaining repeatedly about the unsafe conditions of
his truck, Prill had an accident. His truck jack-knifed and two ve-
hicles ended up in a ditch, and the accident was caused by the
unsafe condition of the truck, not through any fault of Mr. Prill.
And after complaining again to his supervisors, Mr. Prill went to
the Tennessee Public Service Commission. The commission issued a
citation to the company for operating an unsafe vehicle; and for
bringing this matter to the attention of the public agency, Mr. Prill
was fired.
Mr. Prill brought an unfair labor suit against his employer, and
a majority of your court supported his claim. You dissented from
that opinion. You took the view that the labor laws do not protect
a worker in Mr. Prill's situation from reporting his unsafe truck to
the proper authority.
My question is simple. Why not?
844
Judge BORK. Well, the statute, as I recall that caseby the way,
I agreed with the National Labor Relations Board, so I wasn't out
there by myself. And I was giving deference to the administrative
agency that decided this case.
And, as I recall the statute protects concerted activity, and this
was one person acting. And it seemed odd to the Board, and to me,
to say that one person acting was concerted activity. It is purely a
question of statutory construction, with which I agreed with the
relevant federal agency.
Senator KENNEDY. Well, the majority of your court took a differ-
ent view. They, as I understand, viewed the situation that when
truck drivers and other drivers report unsafe conditions it protects
their fellow workers. It protects all those that may be driving that
truck, and that is certainly a matter of concern; let alone those
people who are going to be using the highways, for their safety as
well.
We want to feel safe, Judge Bork, not only on the roads, but in
the courts as well.
Judge BORK. Senator, I quite agree with you. The problem is the
statute seemed to the Board and to me to be clear, and in keeping
with my view of my function as applying the law as written and
not making up social policy, I tried to follow the statute, as did the
Board.
Senator KENNEDY. But the majority of the court differed?
Judge BORK. The majority of the court differed.
Senator KENNEDY. They, as I believe, held that the concerted ac-
tivity requirement would be satisfied by the fact that there would
be other drivers driving the truck and that the public interest in
terms of using the highways would be affected.
Well, Judge Bork, in my remarks yesterday I emphasized the
concern that many of us have about, whether Judge Bork can be
fair if he becomes Justice Bork and whether he has sufficiently
genuine commitment to the basic individual rights that we have as
Americans and that are at the heart of our democracy and free-
dom.
We are not a perfect society, but the overwhelming majority of
Americans are proud of the progress we have made in recent dec-
ades in making this a better land in achieving a greater measure of
racial justice and providing genuine equality for women, in guaran-
teeing the right to vote free from poll taxes and literacy tests, and
in protecting the basic liberties such as freedom of speech and free-
dom of religion, and in some ways the most fundamental right of
all in a free society, the right to privacy and the right to be free
from intrusions by the government into the most fundamental and
personal aspects of our private lives.
We are all aware of the enormous power that a Supreme Court
Justice has, and over the past five days Judge Bork has shown us
that he is a brilliant lawyer. But the controversy over Judge Bork
is intense because Americans care very deeply about their basic
rights, and we do not want to risk the danger that Judge Bork will
misuse the Supreme Court as a platform to turn the clock and re-
quire us to refight the settled battles of the past.
I want to close by quoting some words by the man whose integri-
ty and whose commitment to the rule of law cast such a long
845
shadow over Judge Bork in these proceedings. Archibald Cox de-
clined to testify here for reasons that all of us respect. Professor
Cox cares deeply about the rule of law and he does not want this to
appear to be a personal contest between himself and Judge Bork.
But in a new book that he has just finished, Archibald Cox com-
ments on the fundamental principle at issue in appointments to
the Supreme Court and other federal courts, and I would like to
read one brief passage from his book.
To pack the bench with men and women of a single narrow political ideology has
a tendency to erode long range public confidence in judicial institutions. The legiti-
macy of judicial decrees depends on public confidence that the judges are predomi-
nantly engaged, not in making personal political judgments, but in applying a body
of law. The farther a President goes in proclaiming an intent to predetermine the
course of decisions, the more he will undercut the foundations of legitimacy. The
avowed selection of judges whose minds are already closed on the cases that may
come before them in the future erodes the respect and support for judicial rulings
that flow from public confidence that cases submitted for adjudication are being de-
cided by individuals with open minds as free as humanly possible from political or
economic self-interest, from the obligations of loyalty to a political party or other
organization, and from most forms of ambition.
And I think that most Americans would agree with Archibald
Cox, and I think most Americans would agree that the man who
fired Archibald Cox does not deserve to be promoted to Justice on
the Supreme Court.
Judge BORK. I have explained, Senator, that I fired Archibald
Cox not because of any animus or any desire to stop the investiga-
tions. I have repeatedly explained that I was the last man in the
Department who could hold the Department together. I then spent
a lot of time trying to hold the Watergate special prosecution force
together. It was held together. It went forward with the results we
all know.
Now, as to that passage from Professor Cox, I agree with it en-
tirely. I wish I could write it that well.
Senator KENNEDY. Senator Hatch?
Senator HATCH. Thank you, Senator Kennedy.
Now, Judge, we are coming down to the last few minutes of what
has been almost 35 hours sitting in front of this panel. I think the
longest of anybody I remember. And I might add, you have handled
it with equanimity and good grace, humor, and I think with some
confrontation from some people who maybe confronted you the
wrong way, and certainly have been loose with their own interpre-
tation of cases and the facts.
C.W. Corham once said that "Genius is the ability to reduce the
complicated to the simple," and that is exactly what you have been
doing for about 35 hours of actual sitting in front of us.
At this point, Mr. Chairman, I would like to point the unanimous
pro labor case record of the Judge into the record.
Senator KENNEDY. Without objection, so ordered.
[List of cases follow:]
86-974 0 - 8 9 - 2 9
846
LAW CASES
Judge Boric's open-mindedness and impartial approach to

principled decision-making are vividly demonstrated by his
rulir.gs in the labor law area, where he evidences a scrupulous
regard for the rights of unions and their members, often ruling
against the United . States government in the process.
In United Scenic Artists v. NLR3. Judge Bork joined an
OTinion whicn reversed the Hoard's determination that a secondary
boycott by a union was an unfair labor practice, holding that
such a boycott occurs only :f tr.e jnion acts purposeful 1 v to
irvoj.ve neutral parties in its disp-te with the primary employer.
Similar solicitude fcr the rights of employees is
demonstrated by Northwest Airlmes-v. Airline Pilots Int'l. where
3crk ;oir.ed Judge Edwards' opinion upholding an arbitrator's
decision that an airline pilot's alcoholism was a "disease" which
did net constitute good cause for dismissal.
Another opinion joined by Judge Bork, NAACP v. Donovan,
struck down amended Labor Department regulations regarding the
mini-''?, "piece rates" employers were obliged to pay to foreign
migrant workers as arbitrary and irrational.
A similar decision against the Government was rendered
in National Treasury Employees Union v. Devine, which held that
an appropriations measure barred the Office of Personnel
Management and other agencies fron implementing regulations that
changed federal personnel practices to stress individual
performance rather than seniority.
In Oil Chemical Atomic Workers Int'l v. NLR3, Judge Bork
joined another Edwards opinion, reversing NLRB's determination
that a dispute over replacing "strikers" who stopped work to
protest safety conditions could be settled through a private
acreerent between some of the "strikers" and the company because
of tr.e public interest in ensuring substantial remedies for
unfair labor practices.
In Donovan v. Carolina Stalite Co., Judge Bork also
reversed the Federal Mine Safety and Health Review Commission,
holding that a state gravel processing facility was a "mine"
within the meaning of the Act and thus subject to civil
penalties.
In an opinion he authored for the court in United Mine
'.-'orkers of Arerica v. Mine Safety :--:-alth Administration, Judge
3crk held on behalf of tr.e union tret the Mine Safety and Healtr.
Administration could not excjse individual mining companies fro~
cc:rpii-rce with a rardatory s;:':-:; siardard, even on an interim
basis, without following particular procedures and ensuring that
the miners were made as safe or sa.'er by the exemption from
compliance.
847
In concurring with an opinion authored by Judge Wright

in Amalgamated Clothing and Textile Workers v. .Vational Labor
Relations Board, Judge Bork held that despite evidence that tne
union, at least in a limited manner, might have engaged in
coercion in a very close election that the union won, the
National Labor Relations Board's decision to certify the union
snould not be overturned nor a new election ordered.
In Musey v. Federal Mine Safety and Health Review

Ccrruniss ion, Judge Boric ruled that under the Federal Coal Mine arc
Health and Safety Act the union and its attorneys were entitled
to costs and attorney fees for representing union members.
In Amalgamated Transit Union v. Brock. Judge 3or>.,
writing for the majority, held in favor of the union that the
Secretary of Labor had exceeded his statutory authority in
certifying in federal assistance applications that "fair and
equitable arrangements" had been made to protect the collective
bargaining rights of employees before labor and management had
actually agreed to a dispute resolution mechanism.
Black v. ICC, a per curiam opinion joined by Judge 3ork,

held :hat the ICC had acted arbitrarily and capriciously in
allowing a railroad to abandon some of its tracks in a manner
that caused the displacement of employees of another rai-lroad.
848
Senator HATCH. And I might also comment, as the former Chair-

man of the Labor Committee and ranking member on it now, that I
think it is unseemly for anybody to think that every plaintiff has
to win every case a plaintiff brings. There are laws and even plain-
tiffs are bound by those laws. I think that has to be pointed out.
And anybody who doesn't understand that, doesn't understand the
law. And I think you well explained those two cases.
Let me just you a couple of questions. I don't intend to take all
the time. I have 15 minutes. Senator Simpson has 15 minutes.
But it has been intimated that a judge may not fairly apply a
statute with which he disagrees or thinks pernicious. I must say no
judge agrees with the policy of all the statutes he has to apply. For
example, one would not sayI don't think anyone would say that
Judge Abner Mikva, a colleague of yours on the court of appeals,
and a former Congressman, could not fairly interpret or apply a
law which he voted against as a Congressman. I think anybody
would say he could not fairly do that. I wouldn't, and I don't think
any other member of this committee would. Do you agree with
that?
Judge BORK. Certainly I agree with that.
Senator HATCH. And it shouldn't be said about you, either, just
because you are up for the Supreme Court.
We heard yesterday that you should have deferred with regard
to the American Cyanamid case, that you should have deferred to
the Secretary of Labor on the question of offering a woman a
choice in work hazard situations.
I have checked the documents in that case, and the Secretary of
Labor had not filed a brief or in any way come before the court.
Now how can you defer to a view if it is never presented to the
court. Could you also further explain your views on that subject?
Judge BORK. On the Cyanamid case?
Senator HATCH. Yes.
Judge BORK. Well, I have it here, Senator. I think it is important
that perhaps people understand it.
It was a case, as you know, involving a plant with a very high
lead level in one department. And the question wasand the com-
pany gave the women a choice, and the question was whether that
was a violation of the hazardous conditions policy of the OSHA
Act.
This was a case with no satisfactory solution for anybody. I
mean, there was just nothing tothere was no satisfactory way to
solve it. Our court did not endorse the policy of the company. The
policy was to protect fetuses by telling women that theyif they
wanted to remain in thethey could not remainif they were
childbearing age, they could not remain in that department unless
they were sterilized. But they had a choice.
That was athat policy was not before us. We didn't have to
choose. The best solution would have been to reduce the lead levels.
I said that in the opinion. But the evidence before us supported the
finding of the Commission, that the lead levels could not be further
reduced. If you tried to reduce them further, you would have to
close the department.
So the company and the workers were both faced with what I
called in my opinion a most unhappy choice. Shut down the depart-
849
merit, which would put everybody out of work, including a lot of
women who had nowho were not of childbearing age, and have a
devastating effect, perhaps, on a lot of families in the area, and
children, or develop a policy that would protect women of child-
bearing years.
I would not want to be an official of that company trying to
make that choice. I wouldn't want to be a worker faced with the
choice. And fortunately, as judges, we were not faced with that
choice.
There were several statutes that might have been involved, and I
said in my opinion that there were other statutes that might apply
besides the OSHA Act, and, in fact, some other statutessome
other cases were brought on that.
The administrative Commission that was assigned by Congress to
make the decision found that the law had not been violated. And
under the terms of the statute, we were not free to overrule that
decision.
So let me, if I may, just read from the opinion. I think it is im-
portant that people understand what I decided.
Senator HATCH. All right.
Judge BORK. This is my opinion. It is important to understand
the context in which this case arose and the task that is set for this
court. American Cyanamid found, and the administrative law judge
agreed, that it could not reduce ambient lead levels in one of its
departments sufficiently to eliminate the risk of serious harm to fe-
tuses carried by women employees.
The company was thus faced with unattractive alternatives. It
could remove all women of childbearing age from that department,
a decision that would have entailed discharging some of them and
giving others reduced pay at other jobs, or the company could at-
tempt to mitigate the severity of this outcome by offering contin-
ued employment in the department to women who were surgically
sterilized. The company chose the latter alternative, and the
women involved were thus faced with a distressing choice. Some
chose sterilization, some did not.
This is still continuing:
As we understand the law, we are not free to make a legislative judgment. We
may not, on the one hand, decide that the company is innocent because it chose to
let the women decide for themselves which course was less harmful to them, nor
may we decide that the company is guilty because it offered an option of steriliza-
tion that the women might ultimately regret choosing. These are moral issues of no
small complexity, but they are not for us. Congress has enacted a statute and our
only task is the mundane one of interpreting its language and applying its policy.
Then I said at the end of the opinion:
It is clear that American Cyanamid had to prevent exposure to lead of women of
childbearing age, and furthermore, that the company could not have been charged
under the Act if it accomplished that by discharging the women or simply by closing
the department, thus putting all employees who worked there, including women of
childbearing age, out of work. The company was charged only because it offered the
women a choice.
Then I said,
Counsel for the union stated at oral argument that there would have been no vio-
lation if the company had simply stated that only sterile women would be employed
because there would have been no requirement of" sterilization.
850
We agree that such an announcement would not have involved a
violation of the general duty clause of the statute, but we fail to
see how that policy differs under the statute from the one Ameri-
can Cyanamid adopted. An "only sterile women" announcement
would also have given women of childbearing age the option of sur-
gical sterilization.
The only difference between that case and this case is that here
the company pointed out the option and provided information
about it. It cannot be that the employer is better shielded from li-
ability the less information it provides. The case might be different
if American Cyanamid had offered the choice in an attempt to pass
on to its employees the cost of maintaining a lead concentration
higher than that permitted by law. But that is not this case. The
company could not reduce lead concentrations to a level that posed
an acceptable risk to fetuses.
So the company offered this option, but not as an attempt to pass on costs of un-
lawful conduct, but to permit the employees to mitigate costs to them imposed by
unavoidable physiological facts. The women involved in this matter were put
through a most unhappy choice, but no statute regresses all grievances and we must
decide cases according to law.
I just wanted to make it clear what that case held, Senator, be-
cause there is some thought that we approved a policy. We did not.
The only question was whether the Commission was correct in de-
ciding that this particular statutory provision had not been violat-
ed, and we thought it was.
Senator HATCH. Well, I will reserve the balance of my time. But I
also just point out that that was the unanimous, 3-judge decision as
well. But I think that explains that case, and it should take the
emotion out of it that I think was unfairly used yesterday against
you, as we have seen throughout these proceedings.
So I will reserve the balance of my time, and Senator Simpson
has the remaining 15 minutes.
The CHAIRMAN. The Senator from Wyoming?
Senator SIMPSON. Mr. Chairman, did your son win the game, or
his team?
The CHAIRMAN. They won the game, and there was a goal line
stand on the 2-yard line for four downs, and that is why I am later
than I was supposed to be. We will get you to the Boston College
game quickly.
Well, it is odd to me after a dazzling 5 days of listening, and it
has been an education and like going to law school for me in many
ways. Because in the private practice in Cody, Wyoming, for 18
years, you really don't do too many constitutional cases. Not many
at all.
But really, to think that in the last day and a half we have
talked about somehow that you favor sterilization of women, what
an absurd situation that we could get to in this place? Trigger
words, charged words, high emotionand somehow that you, if you
had your way, would sterilize men and women in the United
States. That is beyond my comprehension how we get to that, but
that is what we do.
851
And you remember when we started this I said, and it may be
shocking but it is sure real to me, you either pass or kill a bill and
you either confirm or reject an appointee to the United States Su-
preme Court apparentlydidn't think it went this far, but it does
in legislationby using a deft blend of emotion, fear, guilt or
racism. That is the wayI didn't think it worked with Supreme
Court nominees. I knew it worked that way with legislation. I
found that. But I didn't think it went that far with this.
And then, of courseand I shared it with you last nightto see
that the dramatic telegram that was generated yesterday was done
by the attorney for the woman who called herand this lady was
the lady attorney, Joan Bertincalled the woman and was her at-
torney in the Cyanamid case and told her to send a telegram to the
Senate Judiciary Committee, and then Ms. Bertin, the lawyer, pre-
pared the wire that we got and it says things like "Judge Bork
thinks we were glad to have the choice of getting sterilized or get-
ting fired. Only a judge who knows about women who need to work
could say that".
Then it says, "It's incredible. The judge, who is supposed to be
fair, can support a company that doesn't follow the OSHA rules",
and you have described all that. "It is the most awful thing that
happened to me". It would have a greater ring of clarity if it were
prepared by the person, but it was prepared by her attorney.
And I said last night, and I say again, that when an attorney
prepares the text of something like that and was the attorney for
the person and then to make it look like some voluntary wire that
came forward out of, you know, whatever, I think that is offensive
to me.
Well, let me share with you that, when I was in the Wyoming
Legislature we adopted a thing called the Missouri Plan on the Se-
lection of judges. There was a reason for that. It was to take judges
out of politics. We spent decades trying to get judges out of politics.
It has happened all over the United States. The States have gone
further than, obviously, we have here, and that is really sad.
Because all this is, is politics right here. Nothing more, nothing
less, not one whit. So we tried to take them out of politics so they
wouldn't have to go up by direct election, which they did in many
Stateswe appointed judicial selection committees, blue ribbon
committeesbecause we all finally realized that judges who run
for the supreme court of the States or run for district court judge
are not very good at the plant gate with pamphlets in their hand.
They really don't cut the mustard.
They are not too good at rallies, either. Kind of don't get down to
the nub of things. They are not very good at pumping hands in the
streets. We politicians like that. That is how we live. That is our
lifeblood. That is our plasma.
So we tried to remove judges from that all over the United
States, but not here in these proceedings. And you are deeply,
deeply in politics here. Nothing more, nothing less. Let no one miss
what is happening. And we will never come this way again.
I am as excited about my ability to participate in this as Arlen
Specter has indicated. We will never see it again. This will never
happen again. Doesn't matter whether you are confirmed or reject-
ed.
852
Because the next time we have a Supreme Court nominee he or
she will say: "There is a limitation to my response to this commit-
tee, and I do not believe as a nominee I can tell you how I might
vote on a particular issue which may come before the Court or en-
dorse or criticize specific Supreme Court decisions presenting issues
which may well come before the Court again"; or "How I might re-
solve a particular issue or what I might do in a future Court action
might make it necessary for me to disqualify myself on the matter
and that would result in my inability to do my sworn duty, namely,
to decide cases that come before the Court"; or to say "I suggest
that none of us really know how we would resolve any particular
issue. At the very least, we would reserve judgment at that time,
and I will not discuss how the statute will be interpreted in the
future." Those are the remarks of Justice O'Connor at her confir-
mation.
Justice Scalia said: "I do not think I should, Senator, respond to
the question because that may well be an issue argued before the
Court and I do not want to be in the position of having in connec-
tion as a condition of my confirmation giving an indication of how
I would come out on it." And the Senator responded: "I understand
that." And that question was then shunted aside.
Then Judge Scalia said, as anyone will in the future and has
always in the past, say, "I just cannot do it, and I think the only
way to be sure that I am not impairing my ability to be impartial,
and to be regarded as impartial in future cases before the Court, is
simply respectfully decline to give an opinion on whether any of
the existing law on the Supreme Court is right or wrong." And
that was the end of that line of questioning. That was it. School
was out.
And then Judge Rehnquist, and I am only citing the most recent
three, he said: "Senator, I was reluctantly willing to answer your
questions about the first amendment questions. I am a good deal
more reluctant to venture an answer that would be any sort of a
broader classification. In effect, I must say I am very much inclined
to think that I best ought not."
That is the rest of our history right there, so we will never see
this again. But what we have seen, again, is more of the authentic
man or woman than we will ever see in a Supreme Court Justice
nominee, and that has been exciting.
So I guess that next time and every time before we would have
the same answers to the same questions, and especially they will
be accepted by us, as they have in the past, and the sad thing is
that we will not get a chance to really dealand they will be more
accepted by us if they have written nothing, done nothing and said
nothing.
Is not that a tragedy?
We will getyou know, I do not know what we will get. Hopeful-
ly we will do welland I think we willunder any future Presi-
dentbut we will never get the yeast and the zip that we have had
here.
The Indiana Law Journal, this remarkable piecewell, you
know, I referred to that. And what you said about it. You said it
was a general theory. You said it was ranging shots. You said it
was an attempt to stimulate. You said it is informal, presented in-
853
formally, as original remarks and lectures. "I did not think it
worthwhile to convert these speculations and arguments into any
heavily researched, balanced and thorough presentation," you
wrote.
You said that, but nobody has ever talked about that. Not once.
And at the end of the article, you said it was tentative and explora-
tory, and they have been hammering you with that thing for 5
days. Well, I think it will be a good lesson to anyone that thinks of
wanting to be on the Supreme Court, and I am sure there are
young people and young lawyers and non-lawyers who would like
to be on the Supreme Court.
It would be interesting, too, whether they have had their goal a
little chilled in this process. That would be interesting for me to
know.
But anyway, we are searching for predictability. I think that was
a fair phrase and you ascribed to it. We are not searching for per-
fection. Everyone of us at this table have flunked that test, period.
All of us, some publicly, some privately, but all of us, all 14 have
flunked the test of perfection.
Some may say that they have not, but they may believe it, but I
do not believe it. So I will not tell about being on federal probation
for shooting those mail boxes when I was 18. I will leave that out.
[Laughter.]
Then, you know, assault and battery charge when I was in the
University of Wyoming, it was not my fault. [Laughter.]
In those days I weighed 260 and had hair and thought beer was
food and was omnipotent. [Laughter.]
And I have got the scars on my head to show for that. And that
is the way it is. It is called real life, and there is not anybody that
does not understand that, nowhere.
Well, I did have some questions, but even though my good friend
from Utah was good enough to toss me a little extra time, I just
wanted tothere was one area that needed just a swift answer,
and that is the area of the Human Life Bill. It seemed to me when
you testified against that, it was a classic example of not letting
your personal preferences influence your interpretation. Was that
not what that was?
Judge BORK. Well, I
Senator SIMPSON. The Human Life Bill.
Judge BORK. I do not know that I should talk about my personal
preferences, but it was certainly a proceeding in which I testified
entirely on constitutional grounds.
Senator SIMPSON. Well, I will conclude. But there is an old poem
that Iand hang on tight because I am not going to go into ro-
mancebut the poem "If by Rudyard Kipling is a dandy, and if
you read it when you are 21 and then read it about every 5 years
afterwards, it has ever more meaning as you chamber it inside of
yourself.
Just a couple of lines from that. Of course, the openers are the
greatest ones for you:
If you can keep your head when all about you are losing theirs and blaming it on
you; if you can trust yourself when all men doubt you and yet make allowance for
their doubting, too; if you can wait and not be tired by waiting, or being lied about
854
don't deal in lies, or being hated, don't give way to hating, and yet don't look too
good nor talk too wise.
That is good stuff. And it is all good stuff. But the other one is:
If you can bear to hear the truth you have spoken twisted by knaves to make a
trap for fools; or watch the things you gave your life too broken and stoop and build
them up with worn out tools;
and so it is, and:
If you can walk with crowds and keep your virtue, or walk with kings nor lose the
common touch; if neither foes nor loving friends can hurt you; if all men count with
you, but none too much.
and, of course:
If you can fill the unforgiving minute with 60 seconds worth of distance run,
yours is the earth and all that is in it; and what is more, you will be a man, my son.
It is a good one. I read it to my three children and it seems topi-
cal and important here.
And I have one final question. Why do you want to be an Associ-
ate Justice of the United States Supreme Court?
Judge BORK. Senator, I guess the answer to that is that I have
spent my life in intellectual pursuits in the law and since I have
been a judge, I particularly like the courtroom. I liked the court-
room as an advocate, and I like the courtroom as a judge, and I
enjoy the give and take and the intellectual effort involved.
It is just a lifeand that is, of course, the court that has the
most interesting cases and issues, and I think it would be an intel-
lectual feast just to be there and to read the briefs and discuss
things with counsel and discuss things with my colleagues. That is
the first answer.
The second answer is, I would like to leave a reputation as a
judge who understood constitutional governance and contributed
his bit to maintaining it in the ways I have described before this
committee. Our constitutional structure is the most important
thing this nation has and I would like to help maintain it and to be
remembered for that.
Judge, as I understand our agreement from yesterday, the minor-
ity has 4 minutes left, but I am not big on holding to minutes.
What I would like to make sure we understand here is, I assume
may I ask the Senator from Wyoming, does he have any further
statement to make at this hearing.
Senator SIMPSON. Mr. Chairman, I think in looking at the format
there, there was a minority of 30 minutes, of which I think there is
four, and then Judge Bork was to close, and then Senator Hatch
and I were to divide 10 minutes.
The CHAIRMAN. Fine. Okay.
Senator SIMPSON. But I probably will not use the entire five.
The CHAIRMAN. Sure. Now, are there any more questions for the
Judge?
[No response.]
The CHAIRMAN. Well, Judge, then we would yield to you for
whatever statement you would like to make and then Senators
Simpson and Hatch will each speak for approximately 5 minutes
and then I will have a brief closing statement.
855
Judge BORK. All right, Senator.
Mr. Chairman, members of the committee, this has been a long,
detailed, and often a profoundly interesting four and a half days of
hearings. And I want to thank you personally Mr. Chairman for
the courtesies you have personally extended to me and to my
family during this week.
I also want to thank all the members of the committee for their
patience, their attention, and their general good humor throughout
these proceedings. For that I am most deeply grateful.
I have over the past four and a half days been asked a number of
probing, highly complex and thoughtful questions covering a very
broad range of subjects. I have answered those questions truthfully,
openly and to the fullest extent possible without crossing the line
that would place me in a position of speaking to specific matters
that might come before either court.
If you have noted, there are views I have testified to here that
reaffirm my acceptance of a body of jurisprudence as established
and no longer judicially assailable, notwithstanding, that has devel-
oped in a manner different from a direction I had suggested some
years ago. At the same time, there is much in my earlier writ-
ingsmost particularly, my views on the proper role of judges and
the need for faithful adherence to the text and the discernible in-
tentions of the ratifiers of the Constitution and statutesthat I
subscribe to just as fully today as I did before.
As a consequence, I have received criticism in some quarters for
being too rigid and criticism in other quarters for being inconsist-
ent or self-contradictory. Neither charge is, in my opinion, an accu-
rate one. As I said to you in my opening statement, I am a jurist
who believes his role is to interpret the law and not to make it.
If the members of the committee are looking, as you have said
you are, for predictability, it is certainly predictable that I will
adhere to my judicial philosophy as I have described it in these
hearings and elsewhere. That may lead on occasion to results that
conservatives applaud and on other occasions to results that liber-
als applaud, but in either event, it will not be because of some per-
sonal political agenda of my own. It will not be a desire to set a
social agenda for the nation. It will be because the result, in my
considered judgment, is required by the law.
On that point, let me simply add, as I also did in my opening
statement, that when I say "the law," I regard precedent as an im-
portant component of the law. As I have described many times
here, there are a number of important precedents that are today so
woven into the fabric of our system that to change or alter them
would be, in my view, unthinkable.
Mr. Chairman and members of the committee, you have my
record before you. It shows not only a full sensitivity toward mi-
norities and women, but a consistent record favoring the interests
of minorities and women. I have given you my full view of the
equal protection clause. It means what the words say: "All persons
are protected against unreasonable legislative classifications."
You have heard me testify under oath, and I take an oath as a
very serious and affirmative thing. I have affirmed my full accept-
ance of the Supreme Court's first amendment jurisprudence, in-
cluding the Brandenburg decision, and I have affirmed by full ac-
856
ceptance of the incorporation doctrine, and there are many other
areas in which that is true.
I have tried to be responsive to your questions. I hope I have suc-
ceeded. But to the extent any members have further questions, I
will be glad to answer them at a later time.
Again, Mr. Chairman, I want to thank you and the members of
this committee.
The CHAIRMAN. Thank you very much, Judge.
Gentlemen, which order do you wish to pursue? Senator Simp-
son?
Senator SIMPSON. Mr. Chairman, thank you.
Mr. Chairman, what we have been seeking these past 5 days
from Judge Bork are certain things, certain things for us to deter-
mine. Among those are knowledge of the law. In these exchanges
and discussions with the members of this committee on both sides
of the aisle, this man, Mr. Chairman, has demonstrated a most for-
midablenay, almost an awesomeknowledge. Surely even your
most severest detractors just have to be impressed. There is no way
that cannot be.
Number two, clarity of expression in your explanations of your
decisions, your views, and of the Constitution, and you have ex-
plained to us some very complex and difficult concepts. And you
have done that in a way that is so clear that not only those of us in
this room, those members of the committee, but many of our fellow
Americans have received a veritable primer in constitutional law.
And I notice you have that little book in front of you a good deal of
the time. It looks a little well-thumbed to me.
You know it. You really do know it, the Constitution. And what
an appropriate time for your appointment when many people in
the United States are reading it for the first time, just because of
this year. And I think that is remarkable, too.
Then a willingness and a capacity to work hard, and that is
something that is impressive to me. And another thing, you could
have gone professorial on us at any point in time. You could have
done that, become a bit pedantic and lectury, and you did not do
that. In fact, I do not believe I saw one time when you spoke or
gave an answer over 3 minutes, and then you deferred to the ques-
tioner and said, I hope I am not taking your time.
I think the only time you ever used the phrase, quote, "On the
other hand," unquote, was in jest or good humor. And let me tell
you, that was interesting to watch for me.
So you have had this willingness and you have let us see your
writings and your speeches and your written decisions. You have
shown this tremendous willingness to workit is an extraordinary
willingness to work diligently, and we have seen this capacity that
you have to be here over these past 5 days while it has probably
worn some of us out.
We are 14 and we had a 4 or 5 hour break between our rounds,
and there you are. And that is extraordinary. And always done
without a shred of impatience or irritation when we all know that
it obviously had to be there. So I think that is impressive to me.
Then judicial temperamentwhat we always seek herein the
face of what has been referred to as fierce attacks, ferocious at-
tacks, in the face of dramatic presentations, either in the form of
857
writing or audio, and the reading of things from others. That has
been interesting. And in that you have displayed the very essence
and epitome of patience and courtesy and good humor which in my
book is the definition of judicial temperament.
I have seen judges who really fired some lightening bolts from
the bench at me and others in the courtroom. They lost their re-
spect of lawyers in the process. And I am a spirited person myself,
but I always felt of myself as an officer of the court and could
always put aside my personal views.
Then, finally, your views and your philosophy. In response after
response we have heard Robert Bork express, explain, discuss his
views and his philosophy. And, again, not in the manner of the
pedant or the lecturer or the professor but as what I see as an
unthreatened man. Under oath, answering questions, often the
same ones, over and over and over again in a very measured and
thoughtful way. I was impressed by that.
As I say, I do not think we will ever see it happen again, regard-
less of what happens here. We will never see this again, because
they will all say, no need to go through that. You do not have to.
You do not have to do that.
And so in my mind, Mr. Chairman, such a person as this nomi-
nee will not pass this way again and former Chief Justice Burger
was correct. I feel this is one of the finest nominees that we have
had to this Court in 50 years, and it just seems difficult to imagine
why at least a majority of our colleagues in the United States
Senate who will read this transcript and see your responses cannot
help but realize what a remarkable opportunity we have here to
place a very unique and extraordinary man on the United States
Supreme Court.
I thank you, Mr. Chairman.
The Senator from Utah.
Senator HATCH. Thank you very much, Mr. Chairman.
I am delighted to take these last few minutes. Over the last 5
days we have been judging a judge. Really, during that grueling
time you have answered every question. In my mind you have dis-
pelled every doubt, you have risen above every insult or indigni-
tyand there have been someyou have disposed of every com-
plaint.
I think this morning has been particularly interesting because
you have had two very brilliant legal minds asking questions to
yours, among others. But I particularly enjoyed Senator Heflin and
Senator Specter and the erudite way they have asked questions of
you and have expected equally erudite answers.
As I said at the outset of this trial, the standard for judgment
has been political, and you have not been judged by your faithful-
ness to the law but by your critics' fidelity to politics or to a politi-
cal agenda.
A judge is not a political officer and should not be measured by
political standards and should not have to make campaign prom-
ises, and I have been impressed that you haven't made any. You
have said what you believe, you have said what you are going to
do, and I think it has certainly been very, very good.
858
I think you have forthrightly answered every question, and some
of them four and five times, and you have done it with patience. By
any standard of fairness, however, it seems to me the judgment
would have to be reported in your favor.
If this body could rise above political measurements and be half
as fair to you as you have been as a judge to others, then I think
the verdict would be unquestionably rendered in your favor, and I
think it will be in the end.
But just look at your record. Take women's rights. They have in-
dicated that maybe you might endanger the equal rights of women,
but what is a fair judgment? The judgment is, and from your state-
ments here and from your record as a judge and as a Solicitor Gen-
eral and your actions, you would grant us much or more protection
as the Supreme Court does, with great fidelity to the words of the
Constitution itself.
The Constitution, of course, guarantees any person equal protec-
tion of the law, and you have reinforced that. You have proven this
on the bench by your actions, by expanding women's rights under
the Equal Pay Act and other statutes, and we have brought those
cases out.
On privacy, they thought maybe you would endanger privacy
rights. Well, your actions speak louder than words. You would en-
force all privacy rights in the Constitution and you would strength-
en the ability of Congress and the President to enforce any others
that they choose to enact or choose to define. I think this is proven
by your writing the opinion in the Dronenberg case, and I think
that can't help but be considered by our colleagues.
With regard to free speech, are you going to only protect political
speech? Well, you have made that clear by your actions. You have
already protected commercial speech in the Williamson Tobacco
case, scientific speech in the McBride case, artistic and expressive
speech in the Quincy Cable case.
You know, would you narrow speech protections? What is the
fair judgment on that? Well, you have already expanded speech
protections beyond that of the Supreme Court in the famous
Oilman case that you decided that now the Supreme Court has
adopted.
So, really, what about overturning many precedents? You have
made it clear you would not do that. You have been so in tune with
the Supreme Court that in 423 cases that you have voted on, not
one has been reversed.
Whether or not they have been listened to by the Supreme
Court, they have rejected certiorari; they have not been appealed
in some instances because the quality of your judging was so good.
That is the point, after all.
Moreover, the Supreme Court has taken every one of your dis-
sents over the majority of your brethren and has adopted them as
their opinions. That is something nobody should ignore. It is really
something.
With regard to Archibald Cox, my gosh, that doesn't even de-
serve to hear much comment about because you followed through
on Watergate and were primarily responsible for having that come
out to the effective conclusion that it did because that investigation
that you backed up led to a President's resignation and several
859
prosecutions, as you know, plus you were instrumental in getting
Leon Jaworski to do it. And as much as I admire Archibald Cox,
there is no question Jaworski really did the job, and where is the
compliment for that?
Well, all I can say is you have wiped away any claims that you
would sustain poll taxes or literacy tests. You have expanded civil
rights in almost every case that you have had before you and you
have enforced every civil rights statute that you have faced and
several others as well.
On the racially-restrictive covenants, you argued the case that fi-
nally created a federal remedy for racially-discriminatory private
contracts in the Runyon v. McCrary case.
You could go on and on, and let me just finish with these com-
ments, and that is this: A lot of people have said minorities should
be afraid of Judge Bork. Well, the fair judgment should be this:
Should we fear a judge who strongly enforced voting rights in
South Carolina in the Sumter County case?
Should we fear a judge who outlawed sex discrimination in the
State Department in the Palmer case? Should we fear a judge who
gave equal pay to stewardesses and other women in the Laffey
case? Should w& fear a judge who outlaws discrimination in mili-
tary promotions in the Emory case?
Should we fear a judge who protected the due process rights of a
homosexual in the Doe case? Should we fear a judge who won pro-
tections against private discriminatory contracts and covenants in
the Runyon case? Should we fear a judge who went beyond the Su-
preme Court in protecting against pregnancy discrimination in the
Gilbert case, and should we fear a judge who went beyond the Su-
preme Court in promoting free speech rights in the libel cases?
Well, I don t think so.
I would conclude with these remarks: You have been very open,
you have answered all these questions. I agree with Senator Simp-
son; it is never going to happen again. Nobody has been as open,
nobody has put themselves forth as much as you have.
When these hearings began, the opposition accused you of being
too rigid because they felt judges should be bound by the rule of
law as well as those judged. You were too rigid because your mind
was closed to new ideas and the rights of minorities, they said.
When they could produce absolutely no good evidence to support
either claim, we began to hear a new allegation that you are too
flexible; that you are too open to suggestions from this body.
Indeed, a judge who is bound by the law ought to be open to
learn from the lawmakers, but these lawmakers ought to learn one
critical lesson from this great jurist, and that is the lesson of fair
ness. In fairness, this body should provide no other verdict than
that supported by the evidence, and that is the verdict of a mag-
nificent performance.
Finally, every person is entitled to his or her own opinion, but no
person is entitled to his or her own facts. The so-called facts used
against you are totally manufactured by people who have made up
their own facts out of the vacuums of their own minds.
To be honest with you, I have really been disturbed by the at-
tacks that have come upon you, and it reminds me of a quote by
860
Albert Einstein. He said great spirits have always found violent op-
position from mediocrities.
I think you are a great spirit, you are a great judge, you are a
great legal mind. You are not only in the mainstream; you have
got a lot of companionship there from the other great legal minds
that we all admire in this century from the left to the right, and I
want to compliment you for the way you have handled yourself
and I hope our colleagues will read this record and pay strict atten-
tion to it, and I have no doubt that you will be confirmed if they
will.
Judge, I won't trespass on your time very long. Let me begin by
thanking your wife and your daughter and your two sons. I hope
that you and your family have not felt you have been confronted
by, to use Senator Hatch's words, opposing prosecutors.
But nonetheless, I am sure that, no matter how fairly or unfairly
you feel the hearing was conducted or my colleagues may charac-
terize it that, it is nonetheless difficult for your family to sit there
under those lights for so long.
I have found in my limited experience of holding public office for
17 years that it is a lot harder on one's family than it is on the
principal when a member of the family is undergoing any test.
You have been undergoing a test, but that is part of the process,
as you well know, Judge. No judge, no nominee is entitled to the
spot, nor have you ever implied you thought you were, merely be-
cause you have been nominated.
It is as much a responsibility of the nominee to prove why he or
she should be on the Court. It is not a presumption automatically
made any more than it is a presumption when one of us stands for
election that we should be elected. That is the process.
As I said at the outset of this, I viewed my role as Chairman of
this committee as not to persuade, not to attempt to persuade my
colleagues, and obviously colleagues on both sides have attempted
to persuade. You have heard two very persuasive closing argu-
ments as to why you should be on the bench.
My function, as I have viewed it, is not to persuade, but to be
part of assuring that all the issues were laid out; that you had a
full and fair and thorough opportunity to respond, and to initiate
any point that you wished to make.
T hope you feel that has been done.
Judge BORK. I do.
The CHAIRMAN. I do not feel this isI have been around here a
long time; I thinkin fact, I know longer than anybody here
except for Senator Kennedy and Senator Byrd. I have sat through
a lot of these hearings.
I have difficulty characterizing any one of the questions, no
matter how tough they were, as particularly harsh attacks. And,
Judge, I hope you feelI'm not asking you to respond in any way,
but I hope you feel this has not been all about "politics" or only
about politics, as some of my colleagues have suggested. I am sure
they believe that; I'm not in any way suggesting they don't.
I hope you believe and understand that at least for some of us,
and I think all of us, it is also about principle. And I hope that you
861
don't feel that this committee has focused in any way on your
background, your private life.
As you know and I am sure you are aware, I have done every-
thing, and my colleagues have all agreed, to protect any inquiry
into that area. There is nothing there. I have read your FBI report,
I have read all those background checks. I think you are an honor-
able man.
But if you have noticed, no one has asked you about anything in
there.
Judge BORK. I noticed.
The CHAIRMAN. And they could have; they have done it before to
other people. If this were going to be pure politics, I think it would
have been a little bit different, but it is not, because you are an
honorable and decent man. There is nothing in your background
that I have seen that in any way indicates that you are not, in
terms of your character, fit to serve on any court in any position in
this country.
So I hope that when all the dust settles, when you are either on
the courtwell, you will be on the court, on the circuit court or the
Supreme Courtyou will look back on this process and at least
find some solace in the fact that none of that has occurred, nor will
it as long as I am chairman of this committee.
The second point I would like to make to you is that I think it is
fair to say that those of us who have taken issue with your philoso-
phy, your judging philosophy, to use your phrase, have not, as was
predicted, been single-issue people.
When you were nominated, this was allegedly supposed to be a
great debate between pro-life and pro-choice, a great debate on all
the other issues that the interest groups are out there talking
about.
But the fact of the matter is, I think it is fair to say, that my
colleagues on both sides of the aisle have notthey have asked
about all those things, but I think it is hard to suggest that that
has been a focus, a single issue.
I think this is about principle, not about whether you are princi-
pledyou are principledbut about whether or not your princi-
pled view of judging and how you interpret the Constitution is con-
sistent with the principles that others of us have regarding that
function and responsibility.
You have been very straightforward about how you view that in-
terpretation of the Constitution. You have confused me a couple of
times, and I acknowledge part of that may be because I have not
fully followed you, not because you intentionally meant to confuse
me.
Other times, I think we may have confused you a little bit, but
one thing has come through for me throughout your testimony. I
have been surprised a little bit about your development of your
views on the due process clause. "Surprised" is too strong; I have
been interested.
I have been interested in your fleshing out further than you ever
had before your views on precedentI think it is fair to say more
than you ever have in public before. I have found them interest-
ingnot provocative, but interestingand I have to let it sink
862
through my mind as to how I determine how consistent they are
with what has been said before and what you say now.
Again, it is fully possible that they are totally consistent. I have
not all sifted through all of it yet. I thought you were going to go
some ways you did not go, and you went other ways I did not
think, which again is what these hearings were about from the
outset.
But a rock-bottom principle, I think it is fair to say, remains
with you, and that is on choices of fundamental principle, decisions
cannot be made by the court where constitutional material does
not clearly specify the value to be preferred; judges can't go off and
do that. There is no principled way to prefer any claimed human
value over any other unless you find it in the text or the history of
the Constitution, as I understand you.
You have written, and I think it is consistent with what you
have said, that the truth is what the majority thinks it is at any
given moment, precisely because the majority is permitted to
govern and to redefine its values constantly consistent with the
Constitution.
Now, I believeI want to choose my adjectives properly here so I
don't in any way in this closing statement misrepresent by implica-
tion anything you have said. Just let me say what I think.
I think the Constitution is more expansive than I think you read
it, and I think judges have more latitude and should have more
latitude than you think they should. I believe that the Constitu-
tionwell, from the Magna Carta to the Constitution, 800 years of
English jurisprudential history, 900 years, have produced an abid-
ing, consistent notion that I am who I am because I am, not be-
cause an}' constitution tells me.
When we delegated rights to a government, we expressly said
that the ones set out as protecting in the Bill of Rights doesn't
count them all. That ninth amendment, to me, is, and should be,
expansive. I acknowledge it hasn't been used that way, but I think
it should be.
I think it is necessary for an emerging society that is going to be
faced with conflicts that are going to exceed those which we found,
in my view, social conflicts, at any time in our history in the next
20 years.
As I said, I believe we are just born with certain rights as a child
of God having nothing to do with whether or not the State or the
Constitution acknowledges I have those rights; that they are given
to me and you and each of our fellow citizens by a creator and it
represents the essence of our human dignity, and even if the Con-
stitution attempted to move them, I would still have them.
I agree with Justice Harlan, as we all have quoted Harlan. You
have quoted him in agreeing with him; everyone here has quoted
him. I agree with Justice Harlanas we have all pointed out, one
of the most distinguished conservative Justices of our erawho
stated that the Constitution is a "living thing."
And I acknowledge you believe it is a living thing as it relates to
whether you can find a textual basis for the principle in the first
place, and you cite often, and I think forthrightly and which sepa-
rates you from some other originalist folks, the fourth amendment.
863
You say, look, if it weren't a living thing, you wouldn't be able to

outlaw wire taps. Obviously, they didn't think of wire taps back
when they were talking about search and seizure. You expand it,
but you must find it in the text first.
And I think the Constitution and its protections are enshrined in
majestic phrases like "equal protection under the law" and "due
process," and thus cannot be, as Harlan said, "reduced to any for-
mula."
It is, as Chief Justice John Marshall said, and I quote, "The Con-
stitution is intended to endure for ages to come, and consequently
to be adapted to the various crises of human affairs. Only its great
outlines are marked."
In the end, Judge, whatever my reaction or anyone else's reac-
tion to your testimony here, which has been long, I think it is fair
to say we have tried to move it as fast as we could, but it has none-
theless been long and, I think, thorough.
And I agree with my colleagues; you have done your best to
answer. You have not attempted to step back and say, "I can't
speak to that issue." And I hope the confirmation process has been
served well, and I hope that in our debate, our discussionsand
the debate will take place on the floor of the United States Senate
because it is my intention for your nomination to get to the floor of
the United States Senate.
I hope that what we have done a little bit of, although none of us
is trained as you have been, to the extent you have been in the
lawI hope our discussions have demonstrated to our fellow citi-
zens the majesty of the Constitution. I hope they have demonstrat-
ed the greatness that we think the American people require of
those who interpret the Constitution.
Let me conclude, Judge, by saying that I do not find you to be
racist or insensitive.
I find you to be a very bright man who has done his best to let us
know what he thinks in a complicated set of principles and areas
that we have discussed, and who has a view of constitutional inter-
pretation and judging that is different than mine.
And there are some things I have to go back and look at now,
and that is to what degree, to how much of a degree, that exists,
and I will do that. And we will listen to testimony from others over
the next couple weeks.
It is still my intention, Judge, to move this along as rapidly and
as fast as possible, but I can't guarantee you when we will finish.
We are shooting to finish this hearing so we can vote on October
1st, but I think it is fair to say we may not be able to make that,
although that is our intention, based on when and to what degree
witnesses are available.
But, Judge, we are going to keep the record open for my col-
leagues who may wish to ask you questions in writing, as you have
agreed to earlier, but we will not burden you with many, I hope. At
least my effort will be to see that that doesn't happen, and there
will be plenty of time before this hearing is over for you to answer
them.
So, Judge, I say to my colleagues I want to thank them, and I
want to thank you. Senator Hatch, you are not going to get the last
word now. I am the Chairman, I just want you to know.
864
Senator HATCH. I don't want the last word.
The CHAIRMAN. We have never been in a circumstance where
Senator Hatch has not had the last word.
Senator HATCH. Oh, that's not true.
The CHAIRMAN. SO I want to make sure that he understands one
of the few prerogatives of a chairman is to have the last word.
Senator HATCH. Can I ask a question, Mr. Chairman?
The CHAIRMAN. YOU can ask a question. I thought you were
about to make a speech.
Senator HATCH. The last thing I want is the last word today.
Mr. Chairman, Senator Thurmond asked me to request if we can
get the witness list all the way through.
The CHAIRMAN. Yes, you will get the witness list.
Senator HATCH. We have given you ours, and we would like to
have it today so we know
The CHAIRMAN. I will try to do that, and I will also point out one
other thing. Senator Thurmond has been here a lot longer than I
have. [Laughter.]
Senator HATCH. A lot longer than any of us.
The CHAIRMAN. Duke just handed me a note. He said, don't
forget Senator Thurmond came to the Senate when you were
eleven years old. [Laughter.]
He is absolutely correct. Judge, I hope you haven't found it much
more than physically tiring. I hope you believe you have been
treated fairly. We have tried our best to do that.
I have enjoyed you. I appreciate your cooperation, and to the
great relief of your family and to youyou will be able to catch at
least the second quarter of the Boston College gamethis hearing
is recessed until Monday.
[Whereupon, at 3:27 p.m., the committee was adjourned, to recon-
vene at 10:00 a.m., Monday, September 21, 1987.]
MONDAY, SEPTEMBER 21, 1987

U.S. SENATE,
Washington, DC.
SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr.
Also present: Senators Kennedy, Metzenbaum, Heflin, Thur-
mond, Hatch, Simpson, Grassley, Specter, and Humphrey.
We are starting our first day of hearings with the public wit-
nesses, and we have some very distinguished witnesses, both here
to speak on behalf of and to express reservations about the nomina-
tion of Judge Bork to be on the Supreme Court.
Let me tell you how the ranking member and I have agreed we
will proceed today. We will start with the morning series of wit-
nesses made up of the former Secretary William Coleman, former
Ambassador Andrew Young, former Congresswoman Barbara
Jordan, Burke Marshall and former Attorney General Nicholas
Katzenbach, although I believe Mr. Katzenbach cannot be here
until the afternoon.
We will go with the first four witnesses that I have mentioned
this morning. I would like to ask the witnesses to attempt to limit
their statements to 10 minutes. We will have a single round of
questioning. I would ask my colleagues to limit themselves in their
questioning to 10 minutes, if that is at all possible. Obviously, if
there is an area that warrants continued questioning, we will do so.
It is my intention to have each witness testify for 10 minutes and
then answer questions for up to 10 minutes from each of the panel
members who have questions.
Now, at lunch, Senator Thurmond and I will speak as to whether
or not we put the American Bar Association, Mr. Tyler and Mr.
Fiske, immediately after lunch or how we are going to work that
or, if we get finished early enough, before lunch if they are here.
But we will start this morning's testimony with former Secretary
William Coleman.
Mr. Coleman, if you would please take the middle seat, I would
appreciate it. We welcome you and are flattered by your presence.
I should say at the outset that I fully understand that when one is
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866
testifying in opposition it is never a joyous occasion. But we appre-
ciate your coming.
Unless the ranking member has any comment he wishes to
make, Senator Thurmond.
Senator THURMOND. Mr. Chairman, I have no comment except I
just want to welcome these witnesses here today. We are glad to
have them, glad to hear from them.
The CHAIRMAN. We will begin with Secretary Coleman. Mr. Sec-
retary, please proceed.
STATEMENT OF WILLIAM T. COLEMAN, JR.
Mr. COLEMAN. Good morning, Mr. Chairman and the other Sena-
tors of this committee.
Written testimony was filed by me late last night. It is 52 pages;
there are three appendices. Mr. Chairman, I would appreciate it if
you would permit that to be transcribed into the record as my testi-
mony.
The CHAIRMAN. The entire statement will be placed in the
record.
Excuse me, Mr. Secretary. One of my colleagues has asked that
you pull the mike very close to you. Thank you very much.
Mr. COLEMAN. Judge Bork's supporters have informed you that I
was a member of the ABA Judiciary Committee which made the
initial investigation of Practitioner Bork's fitness for appointment
to the D.C. Circuit. At that time, the committee voted him excep-
tionally well qualified to be a judge on the United States Court of
Appeals for the District of Columbia.
I have tried very hard to avoid this controversy. The Supreme
Court has played such an important role in ending so many of the
horribly racially discriminatory practices that existed when I first
came to the Bar. As one who has benefited so greatly from this
country's difficult but steady march toward a free, fair, and open
society, the handwriting on the wall"mene mene tekel uphar-
sin"would condemn my failure to testify against Judge Bork.
I urge this committee not to send this nomination to the floor of
the Senate with its approval; if it does go to the floor, I urge the
Senate not to give its consent.
The reasons are: First, Judge Bork has repeatedly rejected the
leading substantive liberty cases since Meyer v. Nebraska, whose
holdings have certainly become part of our constitutional fabric.
These cases are the cases which established that the word "liberty"
in the 14th amendment, in the fifth amendment, and in the Pream-
ble of the Constitution has a meaning other than merely freedom
from bodily restraint. Under these cases, it has been made clear
that every American as part of his birthright has the right to
marry, to procreate, to pursue an occupation, to determine whether
his children want to go to public school or private school, and to
determine what other languages the child wants or his or her
parent want the child to learn. These freedoms are rooted in the
Constitution, and, since 1923, they have been repeatedly recog-
nized. And, indeed, last term Justice O'Connor struck down a State
statute which prohibited prisoners from marrying, holding that
where a person who was in prison had an opportunity to get mar-
ried, it would violate his fundamental liberty for the State to say,
"You cannot marry."
Now, Judge Bork stated his views before he went on the bench.
He has written no decision on the bench which rejects them, but he
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868
has made speeches after being on the bench in which he continues
to take this position.
Second, Judge Bork, with the exception of Brown v. Board of
Education, Number 1, has criticized and rejected every landmark
civil rights case since that time.
Third, Judge Bork in his writingsand I know that during his
testimony he had said something slightly different, and I have re-
ferred to such statements in my testimonyhas said that the 14th
amendment is limited to blacks, and that women, the illegitimate
child, the alien and the poor are not covered by that amendment.
Fourth, despite what some of his supporters will tell you, Judge
Bork is not in the tradition of Justices Frankfurter and Harlan. He
is not the type of judge who believes in judicial restraint as they
used the term.
I support President Reagan; I agree that this country needed to
increase its defenses; I agree that we must get better control of our
budget; and I agree that many more things should be turned back
to the States and the private sector. But I find myself in disagree-
ment with the President's view that the present Supreme Court is
not functioning the way it ought to function, and that we need to
put people on the Court which, at least by their public statements,
have said they would turn back decades of constitutional develop-
ment.
As I said, I have put my reasons for opposition in the written tes-
timony. Now I would just like to walk you through the 14th
amendment cases. I realizeand I wish Senator Simpson were
herethat I do not think I can convince him to change his posi-
tion. But I hope when I leave here, at least every member of this
committee will say that people who oppose this appointment are
doing so for responsible reasons.
Let me talk about the 14th amendment. The first point is that
Judge Bork has said that the 14th amendment was adopted primar-
ily with respect to blacksand then he includes ethnicitybut in
his view once you move beyond that, the decisions are really judge-
made law and there is no basis for them. I have cited in my written
testimony a statement Judge Bork made in Aspen in 1985 where
he takes that position.
That means that those cases which have struck down as uncon-
stitutional State statutes discriminating against women are not, in
his view, properly within the 14th amendment. I know he has shift-
ed and now says that you can apply a reasonableness approach to
such cases. I would like to walk you through that in a minute.
With respect to the alien, he says the same thing; likewise with
respect to the illegitimate child. He says this shall all be left to the
legislative process.
I just ask you gentlemen sitting there and I ask the rest of the
Senate and I ask the rest of the people in this room: Do you think
that when there is a State statute which says that an illegitimate
child cannot recover for the death of his or her mother, but a legiti-
mate child can, that that illegitimate child can muster sufficient
force in the legislature to get that statute changed?
The great case, or one of the first great cases that every lawyer
here knows that was won by black people was the restrictive cov-
enant case in 1948. That case simply held that where there was a
869
racially restrictive covenant on a property but the white owner de-
cided to sell it to a black man, that it would violate the Constitu-
tion for another one of the white signers to go into court and get
an injunction to enforce the covenant.
Now, Judge Bork has said that case was wrongly decided because
there was no State action. But, Judge Heflin, I asked you, when
you were a State court judge and somebody was paying your salary
out of the Treasury, if you had decided to in such a case that if the
parties are all white, the defendant wins, whereas if the plaintiff is
white and the defendant is black you would grant the plaintiff
reliefwell, I find it hard and I think you would find it hard to say
that such a decision is not State action and does not violate the
14th amendment.
Now, the first day when Judge Bork was here he testified that
Shelley v. Kraemer was just a sport in the law and it has no consti-
tutional basis. Well, Barrows v. Jackson seven years later upheld it.
I ask you to reread the New York Times v. Sullivan case. That
came out of Alabama. There you had a situation where the local
official said that the New York Times and Reverend Abernathy li-
beled him. The jury brought back a verdict of I believe a half mil-
lion dollars.
The Supreme Court of Alabama said there is no violation of the
Constitution because when you just have two litigators and one is
trying to enforce the common law of Alabama dealing with libel
there is no State action.
The case comes to the Supreme Court of the United States. It is
reversed nine to nothing in a decision saying there is State action.
And just 3 years ago, Chief Justice Burger stated that whenever
the State is acting through a court, it is State action.
Senator Specter, you remember the Girard College case. Stephen
Girard wrote a will limiting the college to whites only. The black
plaintiffs went into court. The State of Pennsylvania court threw
them out on the ground that this was no State action. The Su-
preme Court reversed that case on the papers.
Now, why do I make such a point of this? At some time you get
affected by your own life experiences. There was a beloved man in
Philadelphia, an outstanding lawyer, Judge Raymond Pace Alexan-
der. He wanted to move to a neighborhood in which there were re-
strictive covenants. He wanted to see a particular house before he
moved into it, and that gentlemanan undergraduate from Cen-
tral High School, which, with all due respect to you, Senator Ken-
nedy, we think is as great as Boston Latin School, an undergradu-
ate from the University of Pennsylvania, a graduate of Harvard
Law School, his wife a Ph.D. recipient and a member of the Law
Review person at the University of Penncould get in and see that
house only by dressing as a painter and getting in that way. Shel-
ley comes along and changes that. We cannot have that type of de-
cision be undone.
Now, in the Judge Bork's writings, he says so many of these
things should be left to the political process: you come up to the
Hill, you go to the State legislatures. Well, in 1963, after this coun-
try had paid a terrible debtit lost Martin Luther King; it lost
President Kennedy; it had over 10,000 young black people who sat
in at lunch counters and had their heads beatenwe finally got a
870
southern PresidentLyndon Johnsonwho really understood the
aspirations of black people. So we get on the floors of the Senate
and the House a public accommodation bill. We make a lot of com-
promisesMrs. Murphy's house exemption, you name it. Yet when
that debate was going on, Judge Bork writes an article in the New
Republic in which he criticizes that whole effort, saying it is very
"ugly" to visit on the white person the requirement to act like any
other American and sell the house to a black person or serve one
at the hotel or lunch counter.
Now, I realize that later Judge Bork has said, oh, gee, I made a
mistake. I guess we all have made mistakes. But then that does not
stop the tale. He still takes the position attacking Congress' en-
forcement power under Section 5 of the 14th amendment.
As you know, when the lawsuit was brought challenging the en-
forcement of the literacy requirement against a voter as violative
of the 14th amendment, or the 15th amendment, the Supreme
Court said no, it did not. Thereafter, there were 2 years of debates,
and finally the Voting Rights Act of 1965 was passed. In passing
that Act you, the Congress, had the sense to say that people who
live in Puerto Rico, who get educated in Spanish, go to college,
speak Spanish, pass a test in Spanish, but then come to New York
and try to register cannot be denied the right to vote simply be-
cause they cannot read English.
The 1970 amendments to the Act extended the ban on literacy
tests on a nationwide basis, thereby invalidating literacy statutes
such as the one that existed in Oregon. Both the Act and the
amendments were challenged. The Supreme Court said you had the
constitutional authority to ban practices that are not themselves
unconstitutional.
On the other hand, Judge Bork in his writing takes the position
that anything that the Supreme Court would say was not unconsti-
tutional could not be made illegal by statute. What that says to the
black and to the woman is that this Congress cannot give the
needed relief.
This view puts in serious jeopardy the matter we had the last
time on the Voting Rights Act. The Court had said that unless you
can prove intent to discriminate racially in connection with estab-
lishing voting districts, there is no violation of the Constitution.
Yet this Senate in 1982 passed the statute which says if the result
shows that there is racial unfairness, that that is illegal.
So here you have a judge who in every instance on these great
issues publicly as a scholar always comes out the wrong way. Now
I hear three things said in terms of why we should relax and not
pay much attention to that.
The first is that obviously when you go in any court there is
precedent. Judges do follow precedents. Well, if there is anything
clear about the Supreme Court, it is that the justices there do not
feel as bound by precedent as lower court judges should. And I
have in Appendix C set forth some of the relevant cases. But, more
importantly, I have set forth the statements made by Judge Bork
where he says that you do not have the obligation to follow prece-
dent, that an originalistand what that means I do not know
who when he gets on the court finds out that there is a decision
871
which he thinks he cannot rationalize as an originalist has no re-
sponsibility to follow it.
Secondly, and
The CHAIRMAN. Mr. Coleman, I am not going to interrupt you
except to say that obviously you are going over the time. But in
order to accommodate this, I will yield my time to you and I will
not ask questions, and apparently
Senator KENNEDY. I will be glad to yield my time, Mr. Chairman.
The CHAIRMAN [continuing]. So that we are able to keep on
track, if you can continue, but I will not allow that to occur to any
other witness.
Mr. COLEMAN. I think I am being very unfair to Congresswoman
Barbara Jordan and
The CHAIRMAN. NO, you would be there this long anyway. It is a
question of whether we ask the questions or you speak, and you are
speaking very eloquently and let our questions not interrupt you.
So you go ahead and anyone else who wishes to do the same, yield
their time to the witness, can do so.
Senator METZENBAUM. We have ten minutes and I just have a
couple of questions. I yield 5 minutes.
Mr. COLEMAN. I can finish.
The second
Senator KENNEDY. Mr. Coleman, I think you have to understand
you are talking about the things that we would be questioning you
about in any event, and you are doing it in a way that is, I think,
of great information for the members of our committee.
Mr. COLEMAN. Secondly, as I indicated, one reason why I am here
is that I know some of my friends who are supporting Judge Bork
have been up here saying, "Well, Bill Coleman was involved in
evaluating his nomination to the D.C. Circuit." And I have put in
writing the reasons why I think the D.C. Circuit approval does not
become the factor which should determine what you should do.
Senator HEFLIN. Would you tell me what page you are on in your
testimony?
Mr. COLEMAN. Yes, sir. You start on page 41 and I tried to take
you through the actual ABA rules, and they will tell you that the
standard for a judge on the circuit is different from the standard
for a Justice on the Supreme Court.
And when you look at page 43 and 44, I set forth the provisions
that control when you are evaluating a person nominated to be a
Justice, and that are not in the provisions when you are evaluating
a person for the court of appeals. And I hope that you would feel,
Senator Heflin, that if I were given the duty to review someone for
the court of appeals, that it would be very irresponsible on my part
to say in the back of my mind, "Oh, gee, since someday he may be
on the Supreme Court, I am going to measure him by a different
standard". I did not do that.
Secondlyand Senator Hatch, I think you have been very effec-
tive talking about the Judge's performance on the court of appeals,
but I have checked. There is only one opinion that he has written
dealing with the constitutional right of privacy and what liberty
means, and there are no civil rights opinions dealing with the con-
stitutional issues.
872
Nobody is claiming that if there is a statute properly drawn by
Congress which says that if you do certain things you discriminate,
that the Judge would not read that statute and apply it. But the
problem is that when you are dealing with constitutional issues,
where you do not have a statute, those are the cases that you have
to be concerned about.
Now in conclusion, I would like to sayand I will be finishedI
would like to point out that Judge Bork has made it clear in his
writings that he would not feel bound to follow precedence if he is
on the Supreme Court, and that the Justices in general are not.
Judge Bork wrote in the New Republic in 1963, "heretical
though it may sound to the constitutional sages, neither the Consti-
tution nor the Supreme Court qualifies as a first principle". That is
his language. Putting aside constitutional sages, it certainly should
come as no surprise to this committee that for black Americans
and the majority of American women the Constitution and that
Court are today matters of first principle. In fact, it is a first prin-
ciple to all Americans.
Much has been written about whether certain rights can be
found in the words of the Constitution or are merely creations of
judges. I urge you to reread the cases beginning with Meyer, and I
think you will conclude that the right of liberty and the right of
privacy are found in the written words of the Constitution. They
are also found in our constitutional history, and even if these
rights were not found in the written words of the Constitution, it
requires a far less expansive reading of the Constitution to find
such privacy rights than it does to get out of the Commerce clause
what everybody says is there.
Yet while Judge Bork is willing to read the Commerce Clause
broadly, when it comes to the great clauses dealing with human
rights, for some reason Judge Bork says such rights are not there.
Now black Americans, women, indeed most Americans, have
seldom suffered because there were not enough words already in
the Constitution. Most damage has come when former Justices did
not read correctly what is in the Constitution. Thus what most
Americans really want are Justicesmen and womenwho will
carry out what is already written.
I urge you also to reread the decision in the Dred Scott case.
That result was reached only because Chief Justice Taney said that
a black, however free and wherever he lived and even though no
longer in slavery, or even though he had never been in slavery,
could not be a person or a citizen as those simple words were writ-
ten in the Constitution.
I would beg you to go back and read them and see whether you
can reach that result with those simple words.
The 14th amendment, as written, did not require the Justices to
set up the phoney scale of separate but equal in Plessy v. Ferguson,
or interpret the 14th amendment to permit a state to prohibit
women from practicing law. And no literal reading of the 13th and
14th amendments required the results reached by the Court on the
power of Congress to pass the Civil Rights Act of 1866 as written.
This has been clearly demonstrated by the cases I cite on page 50,
each one of which has now found that where a private person does
something wrong to another private person, based upon his race or
873
his sex, that that violates the Act of 1866, and Congress has the
power to enact such a statute. That is the same act that the Su-
preme Court in the Civil Rights case in 1881 said Congress had no
power to pass because there was no State action. Can you imagine
where this country would be today if you had a Justice on the
Court then (1881) who was the type that you had in Justice Potter
Stewart, who recognized when you read those words that there was
support in the Constitution for such an enactment?
I thinkto me this is fundamentalif anyone can appreciate the
full impact of an all-pervasive and intrusive government or media
on individual privacy and substantive liberty, it is our elected offi-
cials. No principle is more fundamental to the preservation of a
free society composed of diverse and sometimes fractious cultures,
philosophies and individualists. We are held together as a nation
by a body of constitutional law constructed on the premise that in-
dividual dignity and liberty are the first principles of our society.
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 means more than
mere freedom from physical restraint, which are imbedded in the
very fiber of our Constitution, or a man who questions Congress'
power to enlarge protection for blacks, women and others under
Section 5 of the 14th amendment or Section 2 of the 15th amend-
ment.
Having come this far towards a free and open society, we should
not stop or turn back the constitutional development that slowly
and steadily is removing the vestiges of slavery, of 350 years of le-
gally enforced racial discrimination, and of centuries of irrational
discriminations against women.
I appreciate your patience. I will now try to answer any ques-
tions. As I indicated, I have filed a written document, and I have
every confidence that every member of this committee will read it.
Thank you.
874
113
Written Testimony of William T. Coleman, Jr.

on the Nomination of Judge Robert H. Bork
to be an Associate Justice of the
Supreme Court of the United States
Submitted to the Senate

Judiciary Committee
September 21, 1987

875
Introduction p- 1
p- 4
Part I The Protection of Fundamental Rights p- 11

Part II - The Anti-Discrimination Principle p- 22
Part III - Effect of ABA Judicial Committee p- 41
Rating in 1982
Conclusion p. 46
Appendix A - Justice Frankfurter's Approach to the

Due Process Clause of the Fourteenth
Amendment
Appendix B - Justice Harlan and the Due Process
Clause of the Fourteenth Amendment
Appendix C - The Role of Stare Decisis in Supreme
Court Constitutional Adjudication
and Judge Bork's Views with Respect
to Precedents
876
Written Testimony of William T. Coleman, Jr.

on the Nomination of Judge Robert H. Bork to be
an Associate Justice of the
Supreme Court of the United States
Submitted to the Senate Judiciary Committee
My name is William T. Coleman, Jr., member of the

bars of the Supreme Court of the Commonwealth of Pennsylvania,
of the District of Columbia, and of the Supreme Court of the
United States. I began my legal career as law clerk to Judge
Herbert F. Goodrich of the United States Court of Appeals for
the Third Circuit and thereafter to Supreme Court Associate
Justice Felix Frankfurter, whose views on judicial restraint
I greatly respect. During almost forty years as a private
practitioner, I have been privileged to practice actively
before the Supreme Court of the United States and other
federal and state courts, and to participate in a broad range
of corporate, transactional, public and international matters.
In 1975, President Gerald R. Ford nominated me to

be Secretary of Transportation and, with the consent of the
Senate, I was provided a rare opportunity to serve the
American people as a member of President Ford's Cabinet.*
* Since 1955, I have been a member of the Board of

Directors of the NAACP Legal Defense and Educational Fund,
Inc. I served as its non-employee President until joining
President Ford's Cabinet and since 1977 as its non-employee
Chairman of the Board of Directors.
877
In 1981, I was a member of the ABA Judiciary

Committee which rated then-practitioner Robert H. Bork
"Exceptionally Well Qualified" for appointment to the United
States Court of Appeals for the District of Columbia Circuit.
As the member from the D.C. Circuit, it was my task to make
the initial investigation.
I tried very hard to stay out of this controversy.

As Chairman of the NAACP Legal Defense and Educational Fund,
Inc., I was informed that members of its staff had raised
serious questions about Judge Bork's suitability for appoint-
ment as a Supreme Court Justice. I told the Director-Counsel
of the Fund and the staff that they had a duty to study Judge
Bork's record thoroughly and fairly and-to weigh the effects
of the Fund's opposition if, nevertheless, he was confirmed.
I assured the Director-Counsel and staff that I would not
overrule them if, after a diligent and balanced inquiry, they
concluded that opposing Judge Bork's nomination was essential
to preserve and continue the progress in the effort to end
racial discrimination and all remaining vestiges and effects
thereof for which the Fund has labored so long. For, in
fairness to future generations, white, black and others, male
and female, the Fund's staff must consider the implications
of any nominee to the Supreme Court for the extremely important
and challenging work that remains to be accomplished over the
next 20 to 30 years.
86-974 0 - 8 9 - 3 0
878
As the public debate continued, however, it became

apparent that I cannot sidestep the controversy. On many
occasions, I have come to this Congress, and to members of this
Committee, asking you to take unpopular positions publicly --
for example, the 1982 amendments to the Voting Rights Act of
1965. My service as a public servant, career as a legal prac-
titioner, and my participation in corporate and public policy
decision-making simply would not have been possible if the
Supreme Court had not changed so many of the discriminatory
practices and attitudes that existed three decades ago. Many
of these changes were the direct result of the persistence of
our liberty-loving people, who invoked the aid of the
courts, with ultimate review in the Supreme Court, in their
pursuit of the Constitution's unfulfilled written and
otherwise historically expressed promise of substantive
personal liberty, equality and freedom from racial and
gender discrimination. As the ultimate guardian of the
constitutional legal principles that fairly resolve most
controversial fundamental disputes, the Supreme Court, for
the most part, has kept the protest against racial injustice
and other forms of irrationality from exploding into violent
confrontation in the streets. Instead, we have sought and
found solutions in the courts, the board rooms, and legis-
lative halls. As one who has benefited so greatly from this
country's difficult, but steady, march towards a free, fair,
and open society, the handwriting on the wall "mene mene
879
tekel upharsin"* -- would condemn my failure to appear here

and testify against the confirmation of Judge Eork.
I urge this Committee not to send forward the nomi-

nation of Judge Robert H. Bork to be an Associate Justice of
the Supreme Court of the United States. If his nomination
does go to the floor of the Senate for its consent, I urge
the Senate to refuse to consent to this nomination.
The reasons, briefly summarized, are as follows:
SUMMARY
I. Judge Bork's Reaction of Leading Casea on Fundamental

Rights of Liberty and Privacy
Judge Bork, in his writings and speeches, has

repeatedly rejected the well-established line of Supreme
Court decisions holding that the "liberty" in the Fifth and
Fourteenth Amendments and the preamble to the Constitution
protects against governmental invasion of a person's sub-
stantive personal liberty and privacy. He flatly rejects
* In the Old Testament the language of the Aramaic phrase

written on the wall in Balshazar's dream and deciphered by Daniel
as meaning: "Thou art weighed in the balances, and art found want"
ing." Book of Daniel, ch. 5, verses 25-27 (King James version).
880
as "wrongly decided"* the first decision in that line of

cases, Meyer v. Nebraska, 262 U.S. 390 (1923),** that liberty
in the Constitution means more than "merely freedom from
bodily restraint." Meyer, 262 U.S. at 399. The decision in
Meyer has been applied and followed in an untold number of
cases from a decision handed down in 1925 -- Pierce v.
Society of Sisters, 268 U.S. 510 (1925) to a decision
handed down this past Term, Turner v. Safley, 55 U.S.L.W.
4719 (1987) -- in which the Court, in an opinion written by
Justice O'Connor, held that the "liberty" in the Constitution
encompasses the fundamental right of a person, including a
prisoner, to marry. Judge Bork, by rejecting this line of
cases, would exclude from constitutional protection "the
right of the individual . . . to acquire useful knowledge, to
marry, establish a home and bring up children, . . . and
generally to enjoy those privileges long recognized at common
* Bork, "Neutral Principles and Some First Amendment

Problems;" 47 Ind. L.J. 1, 11 (1971)[hereinafter "Neutral
Principles 1971"].
** In fact, the line of cases may be traced back to a Supreme
Court decision in 1891: "In a line of decisions . . . going
back perhaps as far as Union Pacific R. Co. v. Botsford, 141
U.S. 250, 251 (1891), the Court has recognized that a right of
personal privacy, or a guarantee of certain areas or zones of
privacy, does exist under the Constitution." Roe v. Wade, 410
U.S. 147, 152 (1973). See also, id. at 214-15 (Douglas, J.,
concurring); id. -at 167-71 (Stewart, J., concurring).
881
law as essential to the orderly pursuit of happiness by free

men." Meyer, 252 U.S. at 399.*
Included in the substantive liberty interests that

Judge Bork would remove from constitutional protection is an
individual's right to privacy -- the right to be let alone.
See Griswold v. Connecticut, 381 U.S. 479 (1965). No constitu-
tional concept is more deeply embedded in our nation of
diverse peoples and beliefs than the respect for, and need
for constitutional protection against government intrusion
into, individual privacy, and a distrust of, and need for
constitutional protection against, a powerful government's
capacity to infringe upon individual basic substantive liberties.
And no concept is likely to be more important to the preser-
vation of a free society over the next fifty years as advances
in computer technology, science, communications, and medicine
substantially increase the government's capacity to invade
individual privacy. Justice Stewart, who dissented in
Griswold, wrote in his concurring opinion in Roe v. Wade:
Griswold stands as one in a long line of . . . cases

decided under the doctrine of substantive due process,
and I now accept it as such . . . . The Constitution
* As demonstrated-in Appendices A and B, Justices

Frankfurter and Harlan embraced an interpretation of the
liberty component of the Due Process Clause that Judge Bork
would have to reject.
882
nowhere mentions a specific right of personal choice in

matters of marriage and family life, but the 'liberty'
protected by the Due Process Clause of the Fourteenth
Amendment covers more than those freedoms explicitly
named in the Bill of Rights.
Roe, 410 U.S. at 168-9.
Judge Bork's narrow view would also exclude the liberty

of mobility, rejecting Justice Stewart's view in Shapiro v.
Thompson that "liberty" embraces the fundamental right to travel:
'The constitutional right to travel from one State to

another . . . has been firmly established and repeatedly
recognized. United States v. Guest, 383 U.S. 745, 757
[(1966)]. This constitutional right, which, of course,
includes the right of 'entering and abiding in any State
of the Union,' Truax v. Raich, 239 U.S. 33, 39 [(1915)),
is not a mere conditional liberty subject to regulation
and control under conventional due process or equal pro-
tection standards. '[T]he right to travel freely from
State to State finds constitutional protection that is
quite independent of the Fourteenth Amendment.' United
States v. Guest, supra at 760, n.17. As we made clear
in Guest, it is right broadly assertable against private
interference as well as governmental action. Like the
right of association, NAACP v. Alabama, 357 U.S. 449
[(1958)], it is a virtually unconditional personal right,
guaranteed by the Constitution to us all.
394 U.S. 618, 642-43 (1969) (Stewart, J., concurring) (foot-

notes omitted). Judge Bork's philosophy of almost total
deference to the majoritarian will of local legislative
bodies, which reflect the prevailing community mores and
biases, and his rejection of the constitutional right to
travel would make it impossible for minorities and the poor
Ex. Rept. 100-7 - 5

883
to seek out communities which maximize their opportunity for

individual fulfillment.
Let there be no doubt. Judge Bork, both before

and after he became a federal judge, has in published
articles and speeches criticized these decisions as having no
constitutional basis, as being wrong, and indeed, in some
cases, as being "unconstitutional." And, since becoming a
judge, he has not written any opinion disavowing any of his
publicly stated views.
To approve someone at this stage of our legal

history who rejects the Supreme Court's decisions recognising
the constitutional right of privacy and liberty, whatever the
scholar's background or standing at the bar, would be akin to
approving for appointment a scholar who believed that the
Fourteenth Amendment was improperly adopted and thus is not
part of today's Constitution.*
* There exists a body of literature advancing such a view as

to the invalidity of the Fourteenth Amendment. See e.g.,
Suthon, The Dubious Origins of the Fourteenth Amendment, 28
Tul. L. Rev. 22 (1953); Ackerman, The Storrs Lectures;
Discovering the Constitution, 93 Yale L.J. 1013, 1063 n.68
(1984) (sources cited therein); Murphy, Book Review, Consti-
tutional Interpretation: The Art of the Historian, Magician,
or Statesman? 87 Yale L.J. 1752, 1767 n.76 (1978) (sources
cited therein) (reviewing R. Berger, Government by Judiciary:
The Transformation of the Fourteenth Amendment (1977)).
884
11. Judge Bork's Criticisms of Landmark Civil Rights Cases

Under the Equal Protection Clause
Judge Bork, in his writings and speeches, has

concluded that several leading constitutional decisions
protecting the rights of blacks were wrongly decided and had
no basis in the Constitution. These include Shelley v.
Kraemer, 334 U.S. 1 (1948), decided by a unanimous Court
(with three Justices not participating) in 1948, in which
the majority opinion was written by Chief Justice Vinson.
The Court in Shelley held that the Fourteenth Amendment
forbids a state court from enforcing a racially restrictive
covenant which prohibits the sale of real estate to a black
person. Other decisions criticized by Judge Bork include the
state poll tax cases and the decision in Regents of Univer-
sity of California v. Bakke, 438 U.S. 265 (1978) (affirmative
action case). In objecting to these leading civil rights
decisions, Judge Bork, as a scholar, has often written that
the Court has exceeded its constitutional powers and is
attempting to legislate. But When Gdngreis' enacts civil
rights legislation, he has sometimes concluded that Congress
has in turn exceeded its constitutional powers. The com-
mittee should compare his comments on Shelley with his
comments on Katzenbach v. Morgan, 384 U.S. 641 (1966). See
infra at 29-30, 35-38.
.9
885
III. Judge Bork's Skepticism About the Effective Use of the

Equal Protection Clause to Protect Women, Aliens, the
Poor or Illegitimate Children
Judge Bork also rejects or would greatly limit

the precedential effect of several Supreme Court decisions
that place effective constitutional restrictions on the use
of the strict or heightened scrutiny test to review govern-
mental actions that discriminate on the basis of sex,
illegitimacy, poverty, or alienage.
IV. Judge Bork's Inconsistency With the Frankfurter-Harlan

Tradition of Judicial Restraint
Contrary to the assertion of some of Judge Bork's

prominent supporters, his judicial philosophy is contrary to,
and inconsistent with, that of Justice Harlan and particularly
Justice Frankfurter, who greatly shaped my own views of
judicial restraint and of the proper role of the Supreme
Court in a constitutional democracy.
V. Continuing the Court's Role in Achieving a Fair Society

For All
Finally, even though I generally agree with

President Reagan's views on a strong defense, the need to
reduce the public deficit, and the importance of returning
power to the states and the private sector, I disagree with
10
886
his view that the Supreme Court has been creating constitu-
tional law rather than interpreting it. I also firmly
believe that, having come this far towards a free and open
society, it is not in the public interest to stop or turn
back the constitutional development that slowly and steadily
is removing the vestiges of slavery, of 350 years of legally
enforced racial discrimination, and of centuries of irrational
discrimination against women.
Let us turn to each of these reasons:
DISCUSSION
I. The Protection of Fundamental Rights
Since at least 1923* the Supreme Court has recognized

that the "liberty" protected by the Due Process clauses of
the Fifth and Fourteenth Amendments is not limited to "freedom
from bodily restraint" but has substantive content and thus
embraces certain basic individual liberties. Meyer, 262 U.S.
at 399. See also Pierce, 268 U.S. at 510 (1925). As the
Court in Meyer recognized, those liberties include "the right
of the individual . . . to acquire useful knowledge, to marry,
* As stated earlier, supra p. 5, the proper date may

in fact be at least 1891.
11
887
establish a home and bring up children, to worship God

according to the dictates of his own conscience, and general-
ly to enjoy those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free men."
Meyer, 252 U.S. at 399. These substantive liberty rights
were assumed by me to be part of every American1s heritage
even before I attended law school. Everything I have learned
since as a lawyer in trying to understand the yearnings of
Americans, including what I have learned from reading Supreme
Court decisions, has only reinforced that belief. It has
become an established part of our legal tradition 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 af justice of English-
speaking peoples." Adamson v. California, 332 U.S. 46, 59,
66-67 (1947) (Frankfurter, J., concurring). See also Poe v.
Ullman, 367 U.S. 497, 522, 543 (1961) (Harlan, J., dissenting)
The conclusion that the liberty in the Fifth and

Fourteenth Amendments and the preamble to the Constitution
has substantive content in the realm of personal rights has
been accepted by every Justice with the possible exception of
Justice Hugo Black,* whose somewhat distinctive jurisprudence
* As Senator Specter pointed out at these hearings on Friday,

September 18, 1987, Justice Black accepted this conclusion when
he voted with the Court in Boiling v. Sharpe, 347 U.S. 497
(1954), the District of Columbia school desegregation case.
12
888
resulted from his premise that the first eight amendments in

their entirety are incorporated in, and represent both the
floor and the ceiling of, the Fourteenth Amendment. Justice
Harlan's concurring opinion in Griswold v. Connecticut, 381
U.S. at 499-501 (1965), clearly demonstrates the error in
Justice Black's view.* See also Fairman, "Does the Fourteenth
Amendment Incorporate the Bill of Rights? The Original
Understanding," 2 Stan. L. Rev. 5 (1959). Encompassed within
the long-established view of the meaning of liberty in the
Constitution is the fundamental right to privacy, which has
been held by the Court in a long line of cases to encompass
personal decisions relating to marriage, Loving v. Virginia,
388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1978);
Turner v. Safley; procreation, Skinner v.. Oklahoma; 316 U.S.
535 (1942); contraception, Griswold v. Connecticut; Eisenstadt
v. Baird; 405 U.S. 438 (1972); family relationships, Prince
v. Massachusetts; 321 U.S. 158 (1944); abortion, Roe y.
Wade; and child rearing and education. Pierce; Meyer.
* Of course, even Justice Black's view gives substantive

content to the word "liberty" in the Fourteenth Amendment,
as that is necessarily implied by the incorporation of the
first eight amendments into the Fourteenth Amendment through
the word "liberty." Justice Douglas agreed to a point,
although in his view the first eight amendments did not
exhaust the substantive content of the word "liberty" in the
Constitution.
13
889
Justice Powell, for instance, wrote in Moore v.

East Cleveland, 431 U.S. 494 (1977), in a decision striking
down a housing ordinance restricting dwellings to traditional
single family living arrangements.
[a] host of cases tracing their lineage to [Meyer and

Pierce I have consistently acknowledged a 'private realm
of family life which the state cannot enter'" (citation
omitted).
Moore, 431 U.S. at 499. And just this past Term Justice
O'Connor, in a portion of the opinion joined by every member
of the Court in Turner v. Safley, 55 U.S.L.W. 4719 (1987),
held that the Constitution's protection of "liberty" pre-
vented a state from prohibiting a man in jail from marrying,
stating that there exists "a constitutionally protected
at
marriage relationship in the prison context." Id- 4724.
Justice Stewart also agreed that "liberty" in the

Constitution has substantive content. Although he dissented
in Griswold, in his concurring opinion in Roe v. Wade he
indicated his acceptance of the long line of substantive due
process decisions:
Griswold stands as one in a long line of . . . cases

decided under the doctrine of substantive due process,
and I now accept it as such . . . . The Constitution
nowhere mentions a specific right of personal choice in
matters of marriage and family life, but the 'liberty'
14
890
protected by the Due Process Clause of the Fourteenth

Amendment covers more than those freedoms explicitly
named in the Bill of Rights.
Griswold, 366 U.S. at 268 (1965).
Judge Bork rejects this fundamental concept of due

process and substantive personal liberty, as well as the
decisions which have recognized and followed it. Both before
and after he became a judge, he has harshly criticized the
entire line of decisions recognizing a fundamental right to
privacy.
With regard to Griswold, where the Court struck down

a Connecticut ban on the use of contraceptives as a violation
of the fundamental right to privacy protected by the Due Process
Clause, Judge Bork wrote the following:
Griswold, then, is an unprincipled decision, both

in the way in which it derives a new constitutional
right and in the way it defines that right, or rather
fails to define it. We are left with no idea of the
sweep of the right to privacy and hence no notion of the
cases to which it may or may not be applied in the
future. The truth is that the Court could not reach its
result in Griswold through principle.*
"Neutral Principles 1971," supra p. 5, at 8-9.
15
891
He continued:
All law discriminates and thereby creates inequalities.

The Supreme Court has no principled way of saying which
non-racial inequalities are impermissible. What it has
done, therefore, is to appeal to simplistic notions of
'fairness' or to what it regards as 'fundamental'
interests in order to demand equality in some cases but
not in others, thus choosing values and producing a line
of cases as improper and as intellectually empty as
Griswold v. Connecticut.*
Subsequent to becoming a federal judge, Judge Bork continued

his criticism of Griswold. He wrote that the result in that
case could not "have been reached by interpretation of the
Constitution,"** and that Griswold, along with "all the
sexual freedom cases," represented the Court's "imposition of
upper middle class, college education, east-west coast
morality."*** In his view, "[sjince ther'e is no constitu-
tional test or history to define the right, privacy becomes
an unstructured source of judicial power."**** He has
repeatedly referred to Griswold and its progeny as "the
so-called right to privacy cases, which deal with sexual
* "Neutral Principles 1971," supra p. 5, at 11-12.

** Address by Judge Robert H. Bork, Catholic University,
at 4 (Mar. 31, 1982) (hereinafter "Catholic University
1982"].
*** Address by Judge Robert H. Bork, Federalist Society,
Yale University, pt. 2, at 8-9 (Apr. 24, 1982) (hereinafter
"Federalist Society 1982"].
**** Address by Judge Robert H. Bork, University of San Diego
Law School, at 10 (Dec. 1983).
16
892
morality,"* and in an interview in 1986 restated his views

first expressed 15 years earlier:
I don't think there is a supportable method of consti-

tutional reasoning underlying the Griswold decision.
The majority opinion merely notes that there are a lot
of . . . guarantees of aspects of privacy. . . . Of
course, that right of privacy strikes without warning.
It has no intellectual structure to it so you don't
know in advance to what it applies.**
Judge Bork has also criticized the decision in

Roe v. Wade. In 1981 he testified that Roe v. Wade "is an
unconstitutional decision, a serious and wholly unjustifiable
judicial usurpation of State legislative authority"*** and
stated in a speech that it has "no constitutional founda-
tion."**** After becoming a judge in 1982 Judge Bork, in hi9
non-judicial writings and speeches, continued his attacks on
Roe and described the result of that case as the outgrowth of
the "gentrification of the Constitution" and the Court's
* Address by Judge Robert H. Bork, Brookings Institute,

at 6 (Sept. 12, 1985).
** An Interview with Judge Robert HL. Bork, 3 Judicial
Notice 9 (June 1986).
*** Human Life Bill: Hearings on S. 158 Before the Sub-
comm. on Separation of Powers of the Senate Judiciary Comm.,
97th Cong., 1st Sess. 310, 315 (1982) (hereinafter "Human
Life Hearings 1982"J.
**** Address by Judge Robert H. Bork, Seventh Circuit, at 7
(c. 1981) (hereinafter "Seventh Circuit 1981"].
17
893
attempt at the "nationalization of morality through the

creation of new constitutional rights."* In an interview
in 1984 Judge Bork repeated his view that there was nothing
in the Constitution about the right to have an abortion.**
Both Meyer v. Nebraska and Pierce v. Society of

Sisters, which Justice Powell in Moore cited approvingly as
the genesis of the substantive due process decisions, supra
p. 14, have also been the subject of Judge Bork's criti-
cism. In Meyer the Court struck down a law prohibiting the
teaching of foreign languages to young children, holding that
liberty "denotes not merely freedom from bodily restraint"
but also the right
to acquire useful knowledge, to marry, establish a home

and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy
those privileges long recognized at common law as essen-
tial to the orderly pursuit of happiness by free men.
262 U.S. at 399. In Pierce the Court held unconstitutional

a state law requiring children to attend public schools on
* "Federalist Society 1982," supra p. 16, at 8; see also

Notes for Speech, NYU Law Review Banquet, at 3 (May 1, 1982).
Research has revealed no judicial opinion in which Judge Bork
has rejected, revised or modified these views.
** Robert Bork: In His Own Words, Washington Post, July 5,
1987.
18
894
the ground that it interfered with the liberty interests of

parents and guardians to direct the upbringing and education
of the children under their control. Judge Bork has stated
that Meyer was "wrongly decided" since the Constitution fails
to specify "which liberties or gratifications may be infringed
by majorities and which may not."* He has also argued that
Pierce was "wrongly decided," although conceded that "perhaps
Pierce's results could be reached on acceptable grounds."**
This qualified concession probably refers only to that part
of the holding in Pierce relating to religious schools which
implicated First Amendment interests, and not the part
relating to non-religious private schools.
Judge Bork has also objected to th,e decision in

Shapiro v. Thompson, 394 U.S. 618 (1969), recogniting a right
to travel. Justice Stewart observed in a concurring opinion
in Shapiro:
'The constitutional right to travel from one State to

another . . . has been firmly established and repeatedly
recognized. United States v. Guest, 363 U.S. 745, 757
((1966)]. This constitutional right, which, of course,
includes the right of 'entering and abiding in any State
* "Neutral Principles 1971," supra p. 5, at 11.

** Id.
19
895
of the Union,' Truax v. Raich, 239 U.S. 33, 39 [(1915)],

is not a mere conditional liberty subject to regulation
and control under conventional due process or equal
protection standards. '(TJhe right to travel freely
from State to State finds constitutional protection that
is quite independent of the Fourteenth Amendment.'
United States v. Guest, supra at 760, n.17. As we made
clear in Guest, it is a right broadly assertable against
private interference as well as governmental action.
Like the right of association, NAACP v. Alabama, 357
U.S. 449 [(1958)], it is a virtually unconditional
personal right, guaranteed by the Constitution to us
all.
Shapiro, 394 U.S. at 642-43 (1969) (Stewart, J., concurring)

(footnotes omitted). Judge Bork has included Shapiro in his
list of decisions he considers "improper and intellectually
empty."* Judge Bork's philosophy of almost total deference
to the majoritarian will of local legislative bodies, which
reflect the prevailing community mores and biases, even where
substantive personal liberty and/or privacy are involved,
makes the constitutional right to travel an imperative for
minorities and the poor who seek out communities which
provide them a meaningful opportunity for individual ful-
fillment.
Some have supported Judge Bork on the ground that

his expressions of "judicial restraint" put him in the tradi-
tion of Justice Frankfurter and Harlan. In light of his
"Neutral Principles 1971," supra p. 5, at 11-12.
20
896
views on substantive liberty and privacy, it is clear that this

characterization is 100% wrong. Attached as Appendices A and
B are discussions of opinions written by Justices Frankfurter
and Harlan stating their views regarding the constitu-
tional rights of liberty and privacy, views which are wholly
at odds with the positions that Judge Bork has advanced.
There can be no question that privacy and sub-

stantive 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 unforseen
problems and abuses which the framers could not have foreseen
and thus cannot plausibly be said to have intended to
immunize from constitutional protection. In another major
branch of constitutional law, namely the Commerce Clause,
Judge Bork has recognized the necessity of a pragmatic and
sensitive constitutional interpretation in order to meet the
changing "needs of the nation."* Yet where private indi-
viduals and families are involved, Judge Bork exhibits none
of this pragmatism; he simply refuses to use the specific
Transcript, September 15, 1987, at 180.
21
897
text "liberty" and over sixty years of Supreme Court juris-

prudence or, if necessary (which it is not), the open textured
language of the Due Process Clause, to afford them consti-
tutional protection from any intrusion in addition to mere
physical restraint.
To approve someone at this stage of our legal

history who rejects the Supreme Court's decisions recognizing
the constitutional right of privacy and liberty, whatever the
scholar's background or standing at the bar, would be like
approving for appointment a scholar who believed that the
Fourteenth Amendment was improperly adopted and thus is not
part of today's Constitution.*
II. The Anti-Discrimination Principle
That the Equal Protection Clause prohibits certain

forms of invidious discrimination is manifest from the text
and history of the Fourteenth Amendment. For decades the
Supreme Court, in a sensitive and perceptive manner, has
recognized that the bigotry long directed at blacks has been
directed at other groups as well, including women, aliens.
* As previously indicated, supra at 8, there exists a body

of literature advancing the view that the Fourteenth Amend-
ment is invalid.
22
898
and illegitimate children. This salutary application of the

grand principle of anti-discrimination to the complex realities
of American life is dismissed by Judge Bork as merely the
result of "fads in sentimentality."*
Judge Bork's views, as a scholar and lecturer, on

discrimination against women are especially disturbing. In
his 1971 article he stated that "cases of race discrimination
aside, it is always a mistake for the Court to try to construct
substantive individual rights under the due process or equal
protection clause."** He has reiterated this view in more
recent statements. In a speech he gave in 1982 he stated that
"[w]e know that, historically, the Fourteenth Amendment was meant
to protect former slaves."*** In August 1985 at Aspen, Colorado
he said during a question and answer session following his
speech:
In the Fourteenth Amendment case, the history of that

is somewhat confusing. We know race was at the core of
it. I would think pretty much race, ethnicity (pause)
is pretty much what the 14th Amendment is about;
because if it's about more than that, it's about a
* "Catholic University 1982," supra p. 16, at 19.

** "Neutral Principles 1971," supra p. 5, at 17.
*** Catholic University 1982," supra p. 16, at 18.
23
899
judge making up what more it's about. And I don't

think he should.*
In 1987 he renewed his conclusion that "I do think the Equal

Protection Clause probably should have been kept to things
like race and ethnicity."** If Judge Bork holds to these
views he would reject cases such as Wengler v. Druggists
Mutual Ins. Co., 446 U.S. 142, 150 (1980), which holds that
the Equal Protection Clause forbids discrimination on the
basis of sex, absent some significant governmental need to
make such distinction. The strict or heightened scrutiny
test is needed; mere reasonableness or rationality is not
sufficient in gender discrimination cases.
Judge Bork has been similarly critical of Supreme

Court decisions holding that discrimination against other
groups should be carefully scrutinized. In a line of
decisions beginning with Levy v. Louisiana, 391 U.S. 68
(1968), for instance, the Court has reviewed and struck down
a variety of laws which discriminated against illegitimate
children. The Court has justified heightened scrutiny
* Transcription from tape-recording of comments by Judge

Bork at the Justice and Society Seminar, Aspen Institute for
Humanistic Studies, Aspen, Colorado, August 1985.
** Bork, Bicentennial of the U.S. Constitution, Worldnet
Interview, June 10, 1987, p. 12 [hereinafter "Worldnet 1987"]
24
900
because, as Justice Powell wrote, illegitimate children have

"been a frequent target of discrimination." Trimble v.
Gordon, 430 U.S. 762, 775 n.16 (1977). The Court has also
applied heightened scrutiny to laws that discriminate against
aliens. Graham v. Richardson, 403 U.S. 365 (1971); Ambach
v. Norwick, 441 U.S. 68 (1979). Judge Bork has included
Levy in his catalogue of decisions which he views as
"improper and intellectually empty" and as explainable only
as the result of "the Court's preference for particular
values."* And in a speech in 1982 Judge Bork made the more
general criticism that groups other than racial and ethnic
minorities cannot complain if their cause does not prevail in
the "democratic process."** Judge Bork has been equally
critical of the decision in Harper v. Virginia Board of
Elections, 383 U.S. 663 (1966), which struck down a Virginia
poll tax as impermissibly discriminating "on the basis of
at
wealth." I_^- 668. He has stated that the case was
"wrongly decided" and could not be defended on equal pro-
tection grounds,***
* "Neutral Principles," supra p. 5, at 11-12.

** "Catholic University," supra p. 16, at 17-19.
*** Nomination of Joseph T_;_ Sneed to be Deputy Attorney
General and Robert H_^ Bork to be Solicitor General:
Hearings Before the Senate Comm. on the Judiciary, 93rd
Cong., 1st Sess. 5 (1973) (testimony of Robert H. Bork)
[hereinafter "Confirmation Hearings 1973"].
25
901
Few, if any, of the members of this Committee, or

of the rest of the Senate, or of the individuals in this
room, would maintain that the aliens, the illegitimate
children, or, indeed, the poor if not able to register to
vote because of the poll tax, could achieve the legislative
majorities necessary to end the discrimination and the un-
fairness against such "discrete and insular groups" that
Judge Bork would deny the courts power to invalidate as
violations of equal protection or due process of law.
Having stated that the application of the Equal

Protection Clause should be limited to matters of race and
ethnicity,* Judge Bork then goes on to reject many of the
landmark victories won by black Americans before the Court:
the restrictive covenant cases,** the first affirmative
action case,*** the poll tax case,**** and the literacy
voting cases.***** At almost every critical turning point
* See, supra at 23-25.

** Shelley v. Kraemer, 334 U.S. 1 (1948); see also Barrows
v^ Jackson, 346 U.S. 249 (1953).
*** Regents of University of California v. Bakke, 438 U.S.
265 (1978).
**** Harper v. Virginia Board of Elections, 383 U.S. 663
(1966).
***** Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v.
Mitchell, 400 U.S. 112 (1970).
26
902
in the civil rights movement as exemplified in these cases,

Judge Bork has, as a public speaker and scholar, turned the
wrong way.
Judge Bork's treatment of restrictive covenants is

particularly significant. Racial segregation in residential
housing, apartments and hotels was the way of life in this
country at least through 1945. The Supreme Court in 1917 in
Buchanan v. Warley, 245 U.S. 60 (1917), had held that a city
could not create racial ghettoes by city ordinance. The
same result was accomplished, however, by private, racial
restrictive covenants and by the refusal of private hotel and
apartment houses to rent to blacks. Thus, in most cities.
North and South, the dominant residential pattern was racial
segregation. This obviously had an effect on the makeup of
the public schools, and on the ability of people to get to
know each other and work together, even where racial segre-
gation by law had been abolished by state statutory or
constitutional provisions.
In 1948, in Shelley v. Kraemer, the Supreme Court,

by a six to zero* majority, held, in an opinion by Chief
Justice Vinson and which Justices Black and Frankfurter,
* Justices Reed," Jackson and Rutledge did not participate

in the case.
27
903
inter alia, joined, that the Fourteenth Amendment prevented a

state court from enjoining the sale of real estate by a white
to a black person because the deed contained a racially
restrictive covenant. The case was based in part on Section
1 of the Civil Rights Act of 1866, which provides:
All citizens of the United States shall have the same

right, in every State and Territory, as is enjoyed by-
white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.
42 U.S.C. 1982 (R.S. 1978). The Court, following earlier

decisions, also held that a judicial injunction based on the
racially discriminatory language of a private contract
violated the Fourteenth Amendment. The Court said:
The enforcement of the restrictive agreements by the

state courts in these cases was directed pursuant to
the.common-law policy of the States as formulated by
those courts in earlier decisions The judicial
action in each case bears the clear and unmistakable
imprimatur of the State. We have noted that previous
decisions of this Court have established the proposition
that judicial action is not immunized from the operation
of the Fourteenth Amendment simply because it is taken
pursuant to the state's common-law policy. Nor is the
Amendment ineffective simply because the particular
pattern of discrimination, which the State has enforced,
was defined initially by the terms of a private agree-
ment. State action, as that phrase is understood for
the purposes of the Fourteenth Amendment, refers to
exertions of state power in all forms. And when the
effect of that action is to deny rights subject to the
protection of the Fourteenth Amendment, it is the
obligation of this Court to enforce the constitution
commands.
334 U.S. at 19-20 (footnotes omitted).

28
904
Five years later in Barrows v. Jackson, 346 U.S. 249 (1953),

the Court, relying on Shelley, held by a 6 to 1 majority*
(with Justices Reed and Jackson again not participating) that
it would violate the Fourteenth Amendment for a state court
to award damages against a white seller who sold property to
a black buyer in breach of a restrictive covenant. The Court
stated:
If the State may thus punish respondent for her failure

to carry out her covenant, she is coerced to continue
to 'use her property in a discriminatory manner, which
in essence is the purpose of the covenant. Thus, it
becomes not respondent's voluntary choice but the
State's choice that she observe her covenant or suffer
damages. The action of a state court at law to sanction
the validity of the restrictive covenant here involved
would constitute state action as surely as it was state
action to enforce such covenants in equity, as in
Shelley. . . .
Barrows, 346 U.S. at 254.
In 1971, 23 years after Shelley. 18 years after

Barrows, and 3 years after Jones v. Alfred H^ Mayer Co., 392
U.S. 409 (1968) (holding Thirteenth Amendment bars racial
* Chief Justice Vinson dissented. He fully accepted

Shelley, but argued that since the lawsuit in Barrows was
between two whites who had signed the restrictive covenant,
the house had already been conveyed to the black buyer,
and no claims were being brought against the black buyer,
there was no one before the Court whose constitutional rights
would be violated by an award of damages by the state court
against the white seller.
29
905
discrimination even in the absence of any state action), and

despite numerous cases supporting the principle in Shelley,
Judge Bork took the position that the restrictive covenant
cases were wrongly decided. Lest there be any doubt, this is
what Judge Bork has written:
Shelley v. Kraemer . . . was, of course, not neutral in

that the Court was most clearly not prepared to apply
the principle to cases it could not honestly distin-
guish . . . fShelley 1 converts an amendment whose
text and history clearly show it to be aimed at govern-
mental discrimination into a sweeping prohibition of
private discrimination. There is no warrant anywhere
for that conversion.*
In short. Judge Bork believes that judicial enforcement of

private agreements, even where it involves an injunction
against the voluntary actions of two people to enter into a
contract to sell a house to a black person, does not involve
discriminatory state action.
Judge Bork's conclusion fails to come to grips with

the fact that, prior to Shelley and in the decades since
then, the Supreme Court has recognized in a wide variety of
contexts that "the action of state courts and judicial officers
in their official capacities" is state action subject to the
commands of the Constitution. Shelley, 334 U.S. at 14. Chief
* "Neutral Principles 1971," supra p. 5, at 15-16

(emphasis added).
30
906
Justice Vinson's list of those cases which in his view

supported the holding in Shelley included the following:
Ex parte Virginia, 100 U.S. 313 (1880), holding unconsti-

tutional the actions of a judge restricting jury service
to whites;
American Federation of Labor v. Swing, 312 U.S. 321
(1941), holding enforcement by state courts of common
law to restrain peaceful picketing constituted state
action prohibited by the Constitution;
Cantwell v. Connecticut. 310 U.S. 296 (1940), holding,

state conviction for common law crime of breach of peace
to violate due process guarantee of freedom of religion;
Bridges v. California, 314 U.S. 252 (1941), holding
enforcement of common law rule relating to contempts by
publications constituted unconstitutional state action.
Chief Justice Vinson also included cases overturning convic-

tions obtained by coerced confessions, through the use of
perjured testimony, or without the effective assistance of
counsel.- See Shelley, 334 U.S. at 16-17. And as Justice
Douglas stated in his concurring opinion in Lombard v.
Louisiana, 373 U.S. 267 (1963), "[mjost state convictions in
violation of the First, Fourth, or Fifth Amendment, as
incorporated in the Due Process Clause of the Fourteenth
Amendment, have indeed implicated not the state legislature
but the state judiciary, or the state judiciary and the state
prosecutor and the state police." Id. at 279.
The line -of cases beginning with New York Times v.

Sullivan, 376 U.S. 254 (1964), decided seven years before
31
907
Judge Bork's 1971 article, provides further support for the

continuing vitality of the Shelley principle. In those cases
the Court has consistently subjected common law defamation
and privacy rules in controversies strictly between two
private parties to First Amendment scrutiny, thereby neces-
sarily finding the requisite state action present. In
Sullivan the Supreme Court of Alabama had rejected the'
constitutional claims of The New York Times Company with the
"brief statements that 'The First Amendment of the U.S.
Constitution does not protect libelous publications' and 'The
Fourteenth Amendment is directed against State action and not
private action."1 X^- at 264
(citations omitted). The
Supreme Court of the United States rever.sed, stating:
Although this is a civil lawsuit between private

parties, the Alabama courts have applied a state
rule of law which petitioners claim to impose
invalid restrictions on their constitutional
freedoms of speech and press. It matters, not that
that law has been applied in a civil action and
that it is common law only, though supplemented by
statute. . . . The test is not the form in which
state power has been applied but, whatever the
form, whether such power has in fact been exercised.
Id. at 265 (citation omitted). See also Near v. Minnesota,

283 U.S. 697 (1931) (holding state statute authorizing prior
restraint on press in violation of Fourteenth Amendment);
Pennsylvania y. Board of Trusts, 353 U.S. 230 (1957) (holding
Fourteenth Amendment violated when Pennsylvania courts applied
32
908
a "white only" clause in a will to exclude black orphans from
Girard College).
Only three years ago in Palmore v. Sidoti, 466 U.S.

429 (1984), Chief Justice Burger, writing for a unanimous
Court, cited Shelley and Ex parte Virginia for the proposition
that "[t]he actions of state courts and judicial officers in
their official capacity have long been held to be state
action governed by the Fourteenth Amendment. [Shelley, 334
U.S. at 14; Ex parte Virginia, 100 U.S. at 346-47.]" Palmore,
466 U.S. at 432 n.l. Judge Bork's views would call into
question many of these decisions.
Judge Bork' s views are especially puzzling and
disturbing given that, three years before his 1971 law review
article criticizing Shelley, the Court had held (by a 7-2
majority) that the 1866 Civil Rights Act, which was relied
on in Shelley, did not require any state action at all.
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).* The
* Runyon v. McCrary, 427 U.S. 160 (1976), merely applied

this principle to private schools. Private black parties
won the case below. The United States Government filed a
brief in the Supreme Court as amiCUB curiae urging
affirmance. Solicitor General Bork, along with Deputy
Solicitor General Lawrence Wallace and Assistant Attorney
General for Civil Rights signed the brief. The Official
Report of the Supreme Court shows no indication that
Solicitor General Bork made an oral argument.
33
909
Jones decision was strongly reaffirmed and in fact extended

just last Term when the Court held 9 to 0 that private
discrimination violates the 1866 Act even when the victims
are discriminated against because they are Arabs or Jews,
rather than because of the color of their skin. Saint
Francis College v. Al-Khazraji, 107 S.Ct. 2022 (1987);
Shaare Tefila Congregation v. Cobb, 107 S.Ct. 2019 (1987).
In rejecting major civil rights decisions, Judge

Bork often asserts that the aggrieved and often unpopular
minority should seek redress through the legislative process.
But where such legislative redress has been won. Judge Bork
sometimes has challenged the legitimacy of the legislative
action. For example, when Congress was finally stirred to
action by such catastrophic events as the death of Martin
Luther King, Jr., the physical attacks on thousands of sit-in
students and the death of President John F. Kennedy, and by
the ascension of a southerner to the Presidency -- Lyndon
Johnson -- who understood firsthand the blacks' yearning for
equal justice. Judge Bork objected to the legislative action
on the ground that it invaded the "liberty" of whites,* or
was beyond the power of Congress.**
* Bork, Civil Rights A Challenge, The New Republic,

at 22 (August 31, 1983) (emphasis added) [hereinafter "New
Republic 1983"]:
(footnotes cont'd on next page)
34
86-974 0 - 8 9 - 3 1
910
Judge Bork's published constitutional beliefs,

again written as a scholar, would impose severe, unfair and
unwarranted restrictions on the power of Congress under
section 5 of the Fourteenth Amendment, restrictions that the
Court has already rejected. Section 5 provides: "The
Congress shall have the power to enforce, by appropriate
legislation, the provisions of this article." U.S. Const,
amend. XIV, 5. There were two possible positions regarding
the scope of section 5. The narrow view adhered to by Judge
Bork in his public speeches and writings is that Congress
cannot enact any statute that would make illegal any action
which would not violate the Amendment itself in the absence
(footnotes cont'd from previous page)

Few proponents of legislation such as the Interstate
Public Accommodations Act seem willing to discuss . . .
the cost in freedom which must accompany i-t . . . There
seems to be a strong disposition on the part of the
proponents of the legislation simply to ignore the fact
that it means a loss in a vital area of personal liberty.
That it does so is apparent. The legislature would
inform a substantial body of the citizenry that in order
to continue to carry on the trades in which they are
established they must deal with and serve persons with
whom they do not wish to associate . . . . Of the ugliness
of racial discrimination there need be no argument . . . .
[But] [t]he principle of such legislation is that if
I find your behavior ugly by my standards, moral or aes-
thetic, and if you prove stubborn about adopting my view
of the situation, I am justified in having the state
coerce you into more righteous paths. That is itself a
principle of unsurpassed ugliness.
** See Bork's comments on Katzenbach v. Morgan, infra

at 35-37.
35
911
of the statute. Under this cramped view Congress can

only add penalties or remedies to what is already a constitu-
tional violation.* The Court unanimously rejected this view
in Oregon v. Mitchell, 400 U.S. 112 (1970). In this case
the Court advanced the appropriate and constitutionally-based
view that where Congress had determined that the literary
tests were used to disqualify blacks from voting, it could
under section 5 prohibit the use of literacy requirements in
state elections even though, prior to the statute's enactment,
the Court had specifically held that such requirements were
not per se unconstitutional. See Lassiter v. Northampton
County Board of Elections, 360 U.S. 45 (1959). The view set
forth in Oregon and Katzenbach v. Morgan, 384 U.S. 641
(1966), has been relied on to uphold Congressional action in
Rome v. United States, 446 U.S. 156 (1980) (rejecting challenge
to the "discriminatory effects" test applied under the Voting

Rights Act), and Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
(upholding Title VII as exercise of Congress's power under the
Fourteenth Amendment). See also United States v. Guest, 383
* Bork, Constitutionality of the President1s Busing

Proposals, American Enterprise Institute, at 10 (1972) ("The
[Katzenbach v.] Morgan [, 384 U.S. 641 (1966),] decision
embodies revolutionary constitutional doctrine . . . . " ) ;
"Confirmation Hearings 1973," at 16 (Katzenbach "incorrect");
"Human Life Hearings 1982" supra p. 17 at 310. ("I agree
entirely with the dissent . . . in Katzenbach v. Morgan");
"Seventh Circuit 1981", supra p. 17, at 5 ("Katzenbach v.
Morgan is terrible law.").
36
912
U.S. 745, 782, 784 (1966) (Brennan, J., concurring in part

and dissenting in part) ( 5 of the Fourteenth Amendment
empowers Congress to punish private conspiracies to violate
constitutional rights); id. at 761 (Clark J., concurring,
joined by Harlan, J.).
Not only does Judge Bork believe that under

section 5 Congress cannot establish rights not found in
section 1 of the Fourteenth Amendment, he also believes that
Congress can cut down on the remedy that courts could other-
wise impose under the Fourteenth Amendment. For example, in
Swann v. Charlotte Mecklenburg, 402 U.S. 1 (1971), the
Court, in an opinion written by Chief Justice Burger, held 9
to 0 that once a district court had found that the School
Board had discriminated on the basis of race*, the court could
order school busing to desegregate the school system in the
same area in which the Board exercised its power to segre-
gate. The Court said: "As with any equity case, the nature
of the violation determines the scope of the remedy." Id. at
16. Judge Bork, however, maintains that Congress, by statute,
could reduce the Court's power to desegregate.*
* Equal Educational Opportunities Act, 1972: Hearings on

S. 3395 Before the Subcomm. on Education of the Comm. on
Labor and Public Welfare, 92nd Cong., 2d Sess. 1312 (1972)
(statement of Prof. Robert Bork, Yale University Law School).
37
913
Nothing in Judge Bork's actions as Solicitor

General dispels the honestly-held fears generated by his
erroneous views of the meaning and effect of the Fourteenth
Amendment. The reasons why are clear. First, he expressed
many of these views after he left the Office of the Solicitor
General.* Second, briefs which he filed in that capacity
seldom if ever had any direct bearing on the Equal Protection
Clause, since the cases generally involved statutory rather
than constitutional issues.** Third, it would be inappropriate
23-24.
** If it were claimed that Judge Bork's constitutional
views derived from some animus towards minorities or women,
the filing of briefs in statutory civil rights cases might be
of some relevance. The objection set forth in this testi-
mony, however, turns on the substantive injustices that Judge
Bork's views of the Constitution would permit, so any claim
of malice on his part is not reached. There is no need to
reach the issue whether his personal views would lead him,
when reviewing a clearly drafted Congressional.enactment
prohibiting sex or race discrimination, not to apply the
literal words of the statute. The concern, rather, centers
on his judicial review of a statute prohibiting a state
practice, which the Supreme Court prior to the enactment of
the statute had held did not violate the 14th or 15th
Amendments, see Northhampton County Board of Elections, 360
U.S. 45 (1959), and which practice Congress subsequently
prohibited by statute, after legislative findings that the
practice adversely affected persons because of their race or
sex.
If Judge Bork adhered to his previously expressed

criticisms of Katzenbach v. Morgan, 384 U.S. 641 (1966), or
Oregon v. Mitchell, 400 U.S. 112 (1970), he would either
invalidate such a statute as exceeding Congress1 powers under
section 5 of the 14th amendment or section 2 of the 15th
amendment, or he would construe such a statute so narrowly
(to avoid his perceived constitutional defects) as to
eviscerate their effect and undermine congressional intent.
38
914
to attempt to draw from Judge Bork's work as Solicitor

General any conclusions about his personal views on the
constitutional issues discussed above. The Solicitor General
in the Ford Administration, as in previous and subsequent
administrations, was the government's lawyer in Supreme Court
cases, charged with presenting in that Court policies and
legal views which other officials were primarily responsible
for formulating.*
The most reliable evidence of Judge Bork's views

consist, of course, of his writings and speeches that pre-
date his nomination to the Supreme Court of the United
States. Although, as indicated above, research has revealed
no judicial opinion authored by Judge Bork on these issues,
* Antitrust policy was made in the FTC and the Antitrust

Division, and Judge Bork properly defended it without regard
to his personal views; primary responsibility for formulating
Administration civil rights policy was, as under other
administrations, in the Civil Rights Division. Where the
United States is party to a case which goes to the Supreme
Court, it is the established and proper policy of any Solicitor
General to adhere, absent very unusual circumstances, to the
government's position in the lower courts. At his confirmation
hearings for the Office of the Solicitor's General in 1973,
Judge Bork acknowledged that as Solicitor General he would be
prepared to "put aside [his] personal philosophy" and represent
the Government "on the basis of the policy as enunciated by
the agencies and the Attorney General and on the basis of the
law as it presently stands." "Confirmation Hearings 1973,"
supra p. 25, at 24. Ordinarily the framing of amicus brief
is similarly constrained by a practice of advocating a
position similar to* that taken in the same or other cases in
the lower courts by the responsible division of the Depart-
ment of Justice.
39
915
many of his writings and speeches referred to herein post-

date his becoming a judge. This Committee and the Senate
should give great weight in forming their judgment on the
views reflected in those earlier statements. Such a judgment
cannot be based on any commitments, to the extent such
commitments can ever be meaningful, from a nominee as to what
he or she would do in a hypothetical future case. A nominee's
future treatment of precedents which he has publicly criti-
cized as wrongly decided, without constitutional basis, and
indeed, in some instances, as "unconstitutional," is un-
predictable at best, despite any commitments that might be
made. In addition. Judge Bork has, in his public writings
and statements, as recently as 1986, suggested using the
appointment power as one way of overturning wrongly decided
cases.* I would thus urge this Committee and the Senate, in
assessing the views expressed by Judge Bork prior to and
during these hearings, to bear in mind what he has said prior
to these hearings about overruling constitutional precedents
with which a Justice disagrees:
Since the legislature can do nothing about the inter-

pretation of the Constitution given by a court, the
Court ought to be always open to rethink Constitutional
* Bork, Judicial Review and Democracy, 3 Encyclopedia of

the American Constitution 1062 (1986); see also Confirmation
of Federal Judges t Hearings Before the Senate Comm. on the
Judiciary, 97th Cong., 2d Sess. 1, 13 (1982) [hereinafter
"Confirmation Hearings 1982"1-
40
916
problems. . . . [A]t bottom, a judge's basic obligation

or basic duty is to the Constitution, not simply to
precedent.*
Supreme Court justice(s) always can say . . .
their first obligation is to the Constitution, not to
what their colleagues said 10 years before.**
(I]f a court became convinced that it had made a
terrible mistake about a constitutional ruling in the
past, I think ultimately the real meaning of the
Constitution ought to prevail over a prior mistake by
the court.***
Certainly at the least, I would think an originalist
judge would have no problem whatever in overruling
a non-originalist precedent, because that precedent
by the very basis of his judicial philosophy, has no
legitimacy. It comes from nothing that the framers
intended.****
III. Effect of ABA Judical Committee Rating In 1981
As stated previously, I was a member of the ABA

Standing Committee on Federal Judiciary in 1981 when it
evaluated Judge Bork as being "Exceptionally Well Qualified"
for appointment as a judge to the U.S. Court of Appeals for
* A Talk With Robert H^ Bork. 9 District Lawyer 32

(May/June 1985).
** Justice Robert, IL Bork: Judicial Restraint Person-
ified. California Lawyer, (May 1985).
*** "Confirmation Hearings 1982," supra p. 40, at 13.
**** "Federalist Society 1987, at 126. The same argument is
handwritten in the prepared text of the speech, p. 4. ("no
problem w/ originalist judge overruling non-originalist
decision").
41
917
the District of Columbia Circuit. Some have suggested that

this 1981 ABA rating should be conclusive, or at least almost
so, as to whether this Committee should give its consent to
the President's nominee for the Supreme Court of the United
States. There are at least three reasons why such an
approach is in error:
1. The ABA Judiciary "Committee's evaluation of

prospective nominees to . . . [the Court of Appeals] is
directed primarily to professional qualifications, compe-
tence, integrity and judicial temperament."* The Committee
does not "investigate the prospective nominee's political or
ideological philosophy except to the extent that extreme
views on such matters might bear upon judicial temperament or
integrity."** Instead, "the Committee restricts its review
primarily to issues bearing on professional qualifications."
The Committee specifically points out and recognizes that
"the Senate may consider other aspects of the prospective
nominee's qualifications."***
* ABA Standing Committee on Federal Judiciary: What It Is

And How It Works, (1983) at 3.
** Id. at 4.
*** Id. at 1.
42
918
In an inquiry so limited, a review of Judge Bork's

performance in law school, as a partner in a leading law
firm, as a professor at a leading law school, and as Solici-
tor General of the United States revealed no evidence of a
lack of judicial temperament as that term is understood by
the legal profession. Based on that standard, he thus was
entitled to a rating of "Exceptionally Well Qualified" for
the Court of Appeals for the District of Columbia Circuit.
But the investigation was limited in scope and for the
circuit court only.* In any event, as the Bar understands
it, it is neither the purpose nor the function of the ABA
Judiciary Report to' urge confirmation.
2. The ABA's procedure and rating for Supreme

Court nominees "differ,"** and "are dealt with separately"***
in the ABA's investigation and rating system. The standard
guiding that evaluation of nominees is completely different.
It is still "limited to their professional qualifications
their professional competence, judicial temperament and
integrity,"**** but there are other factors considered which
* Id. at 4.
** Id. at 1.
*** ^.
**** Id. at 7.
43
919
are not relevant to a Court of Appeals nominee. The instruc-

tions provide: "The significance, range and complexity of
the issues considered by the Supreme Court, the importance
of the underlying societal problems, the need to mediate
between tradition and change and the Supreme Court's extra-
ordinarily heavy docket are among the factors which require a
person of exceptional ability. To fulfill the responsi-
bilities of a Supreme Court Justice, .it ^s not enough that
one be a fine person or a good lawyer."* These factors were
never considered when Judge Bork's qualifications for the
Court of Appeals were passed upon.
3. There are other reasons why the ABA Judiciary

Committee's findings relative to Judge Bork's qualifications
for the D.C. Circuit are not conclusive here:
(a) Few cases in the Court of Appeal's for the

District of Columbia Circuit involve the constitutional
civil rights and liberty issues discussed in this
testimony that are so much of the staple diet of the
Supreme Court. In fact, in Judge Bork's five years on
the D.C. Circuit he has written only one opinion for the
court in a case in that category, namely, Dronenburg v.
Id. at 8 (emphasis added)
44
920
Zech, 741 F.2d 1388 (D.C. Cir. 1984) (rehearing en bane

denied, Nov. 15, 1984) (Navy's policy of mandatory
discharge for homosexual conduct does not violate
constitutional rights to privacy or equal protection).*
(b) As a lower court judge his opinions are

subject to review by the Supreme Court and as Judge
Bork has recognized, a lower court judge has a great
responsibility to follow the precedents of the Supreme
Court.
4. In any event, the ABA Judiciary Committee clearly

recognizes that the Senate Judiciary Committee should, and does,
have a wider range of inquiry and this responsibility may on
occasion lead to its failure to consent tb the President's
nomination; in the same way a President, for other public policy
reasons, may decide not to make a nomination for a Justice, even
though the person is one whom the ABA Judicial Committee
would find "well qualified." As Senator Thurmond stated to
his colleagues in the Senate in connection with the nomi-
nation of Justice Abe Fortas to be Chief Justice of the
Supreme Court, "(t]o contend that we must merely satisfy
* This testimony does not discuss Judge Bork's views on

free speech or free- press except to the extent that state
action must be involved before there is constitutional
protection.
45
921
ourselves that Justice Fortes is a good lawyer and a man of

good character is to hold to a very narrow view of the role
of the Senate, a view which neither the constitution itself
nor history and precedent has prescribed."*
CONCLUSION
Should this Committee ignore Judge Bork's long-

held public views because there is a possibility that his
opinions on the Supreme Court would not be based on those views?
So far in his role as a judge. Judge Bork has found few, if
any, occasions in a'judicial decision, to reject positions
which he expressed prior to becoming a judge; his speeches
since his becoming a judge, on the other hand, expressly
adhere to his earlier views.** Judge Bork's supporters will
argue that it is possible that oral argument, briefs, or his
respect for precedent might cause him to change his mind with
* 114 Congressional Record 28771 (1968).

** See, e^., "Catholic University 1982" supra p. 16, at
3 (criticizing Griswold); "Federalist Society 1982," supra
p. 16, pt. 2 at 8-9.(criticizing Griswold); id. at 10
(objecting to protecting women under the Equal Protection
Clause); "Worldnet 1987," supra p. 24, at 12-13 (objecting to
protecting women under the Equal Protection Clause); "Seventh
Circuit 1981," supra p. 17, at 4 (criticizing Katzenbach v.
Morgan); Address by Judge Robert H. Bork, First Annual
Lawyer's Convention of the Federalist Society, at 126
(Jan. 31, 1987) [hereinafter "Federalist Society 1987"]. The
same argument is handwritten in the prepared text of the
speech, p.4 ("no problem w/ originalist judge overruling non-
originalist decisions.").
46
922
respect to views he has held throughout his academic and

judicial life so far. But we have been reminded constantly
that when constitutional issues are involved. Justices do not
feel the same restraint not to overrule prior decisions of
the Supreme Court that they do when only a question of
statutory interpretation is involved.
For example, then Justice Rehnquist, in Wengler v.

Druggists Mutual Insurance Co. 446 U.S. 142, 153-4 (1980),
said in his dissenting opinion that he continued "to believe
that California y. Goldfarb, 430 .U.S. 199 1(1977)], was
wrongly decided, and that constitutional issues should be
more readily reexamined under the doctrine of stare decisis
than other issues." Attached as Appendix C is a discussion
of other cases in which individual Justices have expressed
similar views regarding stare decisis, as well as Judge Bork's
public statements regarding constitutional precedents of the
Supreme Court. One of these cases I know all too well,
because I was the unfortunate lawyer who argued it. In
Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528 (1985), Justice Blackmun rejected his own previous
concurring opinion, and instead wrote the opinion that
overruled National League of Cities v. Usery, 426 U.S. 833
(1976).
47
923
Judge Bork, in his writings, has made clear his

views on the limited constraint of precedent and stare
decisis in approaching issues of constitutional dimension:
Certainly, at the least, I would think an originalist

judge would have no problem whatever in overruling a
non-originalist precedent, because that precedent by the
very basis of his philosophy, has no legitimacy.*
Supreme Court justice[s] always can say. . . [their]
first obligation is to the Constitution, not to what
their colleagues said ten years before.**
Judge Bork has criticized many of the Supreme Court decisions

discussed above as wrongly decided, as being without a
constitutional basis, and in some instances as themselves
"unconstitutional." In light of these criticisms and Judge
Bork's views regarding the role of a Justice regarding
constitutional precedents, it is difficult to believe that as
a Justice he would feel bound to follow those prior deci-
sions.
So, in the final analysis, it comes down to a

simple proposition. If it turns out that Judge Bork as a
* "Federalist Society 1987" supra, p. 46, at 126 (emphasis

added).
** Justice Robert !L_ Bork: Judicial Restraint Personified,
California Lawyer-(May, 1985).
48
924
Justice would reject his writings and accept the valued

Supreme Court precedents described above, then to have re-
jected him because of his writings could perhaps be argued
as unfair to him. On the other hand, if the Senate elevates
him to the Supreme Court and he performs as a Justice as he
has as a scholar and as he has said a Justice ought to
perform, then the Senate will have done a great disservice to
women (51% of the population), to black Americans (12% of the
population), and indeed to all persons in light of Judge
Bork's rejection of the substantive rights of liberty and
privacy, today so much a part of our constitutional fabric.
Judge Bork said in the New Republic in 1963:

"Heretical though it may sound to the constitutional sages,
neither the Constitution nor the Supreme Court qualifies as a
first principle."* Putting aside constitutional sages, it
certainly comes as no surprise to this Committee that for
black Americans and the majority of American women, the
Constitution and the Court are teday matters of "first
principle." In fact, it is first principle to all Americans.
Much has been written about whether certain rights

can be found in the words of the Constitution or are mere
"Mew Republic," supra p. 34, at 22.
49
925
creations of judges. Black Americans, women, indeed, most

Americans, have seldom suffered because there were not enough
words already in the Constitution. Most damage has come
because former Justices did not read correctly what is in the
Constitution. Thus most Americans merely want as Justices
men and women who will carry out what is already written.
Please reread the decision in Dred Scott v. Sandford. 60 U.S.
(19 How.) 393 (1857). Its result was reached only because
Chief Justice Taney said that a black, however free, and
wherever he lived, and even though no longer in slavery or
never a slave, could not be a person or a citizen as those
simple words were written in the Constitution. The Four-
teenth Amendment as vritten did not require the Justices to
set up the phoney scale of separate but equal in Plessy v.
Ferguson, 163 U.S. 537 (1896), or interpret the Fourteenth
Amendment to permit a state to prohibit women from practicing
law. Bradwell v. State, 83 U.S. (16 Wall.) 130 (1873). And
no literal reading of the Thirteenth and Fourteenth Amend-
m t s required tb* results reached by the Court on the
meaning of the Civil Rights Act of 1866 in the Civil Rights
Cases 109 U.S. 3 (1883), as has been so clearly demonstrated
by the Court's decisions in Jones v. Alfred H^ Mayer Company;
Runyon v^. McCrary, 427 U.S. 160 (1976); St. Francis College
v. Al-Khazraji. and Shaare Tefila Congregation v. Cobb. In
addition, no literal reading of the Constitution required the
Court to hold initially that blacks could be excluded from
50
926
the party primaries because primaries were construed as

private clubs. Compare Grovey v. Townsend, 295 U.S. 45
(1935) with United States v. Classic, 313 U.S. 299 (1941),
and Terry v. Adams, 345 U.S. 461 (1953).
More fundamentally, if anyone can appreciate the

full impact of an all-pervasive and intrusive government or
media on individual privacy and substantive liberty, it is
our elected representatives. Mo principle is more fundamental
to the preservation of a free society composed of diverse and
sometimes fractious cultures, philosophies, and individualists.
We are held together as a nation by a body of constitutional
law constructed on the premise that individual dignity and
liberty are the first principles of our society. 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" (more than mere
freedom from physical restraint) embedded in the very fiber
of our Constitution or Congress's power to enlarge
protection for blacks, women and others under 5 of the
Fourteenth Amendment or 2 of the Fifteenth Amendment?
Having come this far towards a free and open

society, we should not stop or turn back the constitutional
development that slowly and steadily is removing the vestiges
of slavery, of 350 years of legally enforced racial dis-
51
927
crimination, and of centuries of irrational discrimination

against women.*
* In 1920 the Nineteenth Amendment was adopted which gave

women the right to vote. The first case which held that
discrimination based upon gender violated the Fourteenth
Amendment was Reed v. Reed, 404 U.S. 71 (1971).
52
928
Appendix A
JUSTICE FRANKFURTER'S APPROACH

TO THE DUE PROCESS CLAUSE OF
THE FOURTEENTH AMENDMENT
In numerous opinions spanning his tenure on the

Supreme Court, Justice Frankfurter articulated a strongly-
held set of views regarding the proper interpretation of the
due process clause of the Fourteenth Amendment. These
opinions relate primarily to the substantive and procedural
rights of criminal defendants, but a number express Justice
Frankfurter's views regarding certain political and privacy
rights protected by the due process clause. A recurrent
theme is his vigorous debate with Justice Black over whether,
and the extent to which, the due process clause incorporated
the Bill of Rights, thereby making them applicable to the
states. In opposing wholesale incorporation. Justice
Frankfurter argued for a flexible yet principled interpre-
tation of "liberty" and "due process" that would both reflect
our historical traditions and respond to the evolving demands
of a progressive society, and cautioned repeatedly against a
rigid conception of the due process clause that would freeze
it in time and place.
Justice Frankfurter believed that in determining

which "liberties" were protected by the due process clause
of the Fourteenth Amendment the Court could not rely on a
929
simple transplanting of the Bill of Rights. Instead, it had

to determine on a case by case basis whether specific liber-
ties were encompassed by the Fourteenth Amendment's prescrip-
tions: no state shall "deprive any person of life, lib-
erty, or property, without due process of law." U.S. Const.,
amend. XIV, 1. He stated that:
These standards of justice are not authoritatively -

formulated anywhere as though they were specifics. Due
process of law is a summarized constitutional guarantee
of respect for those personal immunities which, as Mr.
Justice Cardoso twice wrote for the Court, are "so
rooted in the traditions and conscience of our people
as to be ranke'd as fundamental," Snyder v. Massachusetti
291 U.S. 97, 105 ((1934)), or are "implicit in the
concept of ordered liberty." Palko v. Connecticut, 302
U.S. 319, 325 [(1937)]. "
Rochin v. California, 342 U.S. 165, 169 (1952). Justice

frankfurter believed that the due process clause "expresses a
demand for civilized standards . . . [which] neither contain
the peculiarities of the first eight amendments nor are they
confined to them." Louisiana ex rel. Francis v. Resweber,
329 U.S. 459, 468 (1947) (Frankfurter, J., concurring).
Rather than simply mirroring the Bill of Rights, the clause
possessed "independent potency," Adamson y. California, 332
U.S. 46, 66 (1947) (Frankfurter, J., concurring), reflecting
a "different but deeper and more pervasive conception," Wolf
v. Colorado, 338'U.S. 25, 27 (1949), rev'd, 367 U.S. 643
(1961), and "what may be found within or without [it] . . .
must inevitably be left to 'the gradual process of judicial
930
inclusion and exclusion, as the cases presented for decision

shall require,1" Resweber, 329 U.S. at 471 (quoting Davidson
v. Board of Admini strators of New Orleans, 96 U.S. 97, 104
(1878)).
In the context of the rights of the accused, this

process of "inclusion and exclusion" did not result in a
consistently expansive or restrictive interpretation of the
due process clause. In Rochin Justice Frankfurter authored
the majority opinion holding that the brutal stomach-pumping
procedures used to .extract incriminating evidence from a
defendant's body "shock[ed] the conscience" and violated due
process. 342 U.S. at 172. And in Leiand v. Oregon, 343
U.S. 790 (1952), Justice Frankfurter dissented from the
decision of the Court upholding a state statute placing on
defendants who plead insanity the burden of proving their
insanity beyond a reasonable doubt, arguing that the statute
violated one of the basic notions of a free society. Id.
at 802-03. On the other hand, in Wolf v. Colorado, supra,
338 U.S. 25 (1949), he authored the Court's opinion holding
that although the Fourth Amendment's prohibition of unreason-
able searches and seizures applied to the states, the exclu-
sion of illegally seized evidence is not required by "the
minimal standards assured by the Due Process Clause." 338
U.S. at 31. And in Bartkus v. Illinois, 359 U.S. 121 (1959),
he wrote the Court's opinion concluding that permitting
931
successive state and federal prosecutions for different
crimes arising from the same acts is not "repugnant to those
standards of outlawry which offend the conception of due
process outlined in Palko." Id. at 131.
In a number of opinions in cases involving state

laws impinging on the exercise of political activities,
Justice Frankfurter elaborated his view that "liberty"
encompassed what he termed the fundamental right to political
privacy and autonomy. In Sweezy v. New Hampshire, 354 U.S.
234 (1957), the Court held that a defendant was denied due
process of law when he was adjudged guilty of contempt for
declining to answer certain questions put to him in a legis-
lative inquiry regarding his academic activities and knowledge
of the Progressive Party. Justice Frankfurter, in a separate
opinion concurring in the result which Justice Harlan joined,
stated that "the right of a citizen to political privacy,"
id. at 266-67 (Frankfurter J., concurring), is guaranteed by
the due process clause, and "[f]or a citizen to be made to
forego even a part of so basic a liberty as his political
autonomy, the subordinating interest of the State must be
compelling." ^d. at 265. In Garner v. Board of Public Works
of Los Angeles, 341 U.S. 716 (1951), the Court upheld require-
ments that public employees state whether they had been members
of the Communist Party and take an oath denying past or present
membership in, or affiliation with, any organization that
932
advocated, advised or taught the violent overthrow of the

government. Justice Frankfurter concurred in part and dissented
in part. He stated that because the oath did not exclude unknown
or inadvertent proscribed affiliations, its sheer breadth could
"operate as a real deterrent to people contemplating even inno-
cent associations." Id. at 728 (Frankfurter, J., concurring in
part and dissenting in part). He concluded that the oath could
not survive constitutional scrutiny since it was not "consonant
with the Due Process Clause for men to be asked, on pain of
giving up public employment, to swear to something they cannot
be expected to know. Such a demand is at war with individual
integrity." d. at 728. One year later, in Wieman v. Updeqraff,
344 U.S. 183 (1952), the Court struck down a loyalty oath imposed
by Oklahoma as a condition to public employment. Justice
Frankfurter, in a concurring opinion, wrote that "the Oklahoma
\&w violates those fundamental principles of liberty 'which lie
at the base of all our civil and political institutions' and as
such are embedded in the due process of law which no State may
offend. Hebert v. Louisiana, 272 U.S. 312, 316 [(1926)]."
Wieman, 344 U.S. at 196 (Frankfurter, J., concurring).
In these opinions Justice Frankfurter interpreted

"liberty" to include certain rights closely related to rights
guaranteed by the First Amendment. Yet he based those rights
directly and firmly on the due process clause. As he stated
in Sweezy, the need to balance "the right of a citizen to.
933
political privacy, as protected by the Fourteenth Amendment,

and the right of the State to self-protection . . . is the
inescapable judicial task in giving substantive content,
legally enforced, to the Due Process Clause." 354 U.S. at
266-67 (Frankfurter, J., concurring). He held a similar view
regarding the Court's decisions which applied to the states
the guarantees of the First Amendment. Those decisions, in
his view, were based not on any theory of "incorporation,11
but rather on the
reasoning that the Fourteenth [Amendment] prevents

state intrusion upon 'fundamental personal rights and
liberties,' that among those rights and liberties are
free speech, press, etc., which the First Amendment
explicitly protects against federal encroachment, and
that, because they are fundamental (not because they are
contained in the First Amendment), they fall within the
scope of the prohibitions of the Fourteenth [Amendment].
F. Frankfurter, "Memorandum on 'Incorporation* of the Bill of

Rights into the Due Process Clause of the Fourteenth Amend-
ment," 78 Harv. L. Rev. 746, 749 (1965).
Justice Frankfurter's approach concededly left

indeterminate the precise contours of the liberty interest
protected by the due process clause. As he stated in Adamson,
"[t]hese standards of justice are not authoritatively formu-
lated anywhere as though they were prescriptions in a pharma-
copoeia." Adamson, 332 U.S. at 68. But in his view this was
as it should be, for he believed that due process "is, perhaps.
934
the least frozen concept of our law -- the least confined to

history and the most absorptive of powerful social standards
of a progressive society." Griffin y. Illinois. 351 U.S. 12,
20-21 (1956) (Frankfurter, J., concurring). As he set forth
at greater length in Rochin;
In dealing not with the machinery of government but

with human rights, the absence of formal exactitude, or
want of fixity of meaning, is not an unusual or even
regrettable attribute of constitutional provisions.
Words being symbols do not speak without a gloss. On
the one hand the gloss may be the deposit of history,
whereby a term gains technical content. . . On the
other hand, the gloss of some of the verbal symbols of
the Constitution does not give them a fixed technical
content. It exacts a continuing process of application.
When the gloss has thus not been fixed but is a
function of the process of judgment, the judgment is
bound to fall differently at different times and
differently at the same time through different judges.
Even more specific provisions, such as the guaranty of
freedom of speech and the detailed protection against
unreasonable searches and seizures, have inevitably
evoked as sharp divisions in this Court as the least
specific and most comprehensive protection of liberties,
the Due Process Clause.
The vague contours of the Due Process Clause do
not leave judges at large. We may not draw on our
merely personal and private notions and disregard the
limits that bind judges in their judicial function.
Even though the concept of due process of law is not
final and fixed, these limits are derived from con-
siderations that are fused in the whole nature of
our judicial process. See Cardozo, The Nature of the
Judicial Process; The Growth of the Law; The Paradoxes
of Legal Science. These are considerations deeply
rooted in reason and in the compelling traditions of
the legal profession. The Due Process Clause places
upon this Court the duty of exercising a judgment,
within the narrow confines of judicial power in review-
ing State convictions, upon interests of society pushing
in opposite directions.
935
342 U.S. at 169-171.
This flexible approach to liberty and due process

was repeatedly criticized, especially by Justice Black, for
ceding to the Court wide and unfettered discretion. Justice
Black objected that the resort to "nebulous standards" such as
whether a challenged law or practice "'shocks the conscience',
offends 'a sense of justice'" and "runs counter to the 'decencies
of civilized conduct'" produced an "accordion-like [approach
that] . . . must inevitably imperil all the individual liberty
safeguards specifically enumerated in the Bill of Rights."
Rochin, 342 U.S. at 175, 177 (Black, J., concurring) (footnote
omitted). He protested that such an ad hoc approach arrogated
to the Court a license "to roam at large in the broad expanses
of policy and morals and to trespass, all too freely, on the
legislative domain of the States as well as the Federal Govern-
ment." Adamson, 332 U.S. at 90 (Black, J., dissenting).
Justice Frankfurter was not untroubled by the

open-ended nature of his approach. Indeed, on more than one
occasion he acknowledged the possibility that the "broad
terms" of the due process clause "may be too large to serve
as the basis for adjudication, in that they allow much room
for individual notions of policy. Resweber, 329 U.S. at 468
(Frankfurter, J., concurring). See also Leiand, 343 U.S. at
807 (Frankfurter, J., dissenting). Yet, he responded.
936
"[tjhat is not our concern. The fact is that the duty of

such adjudication on a basis no less narrow has been committed
to this Court." Resweber, 329 U.S. at 468. See also Sweezy,
354 U.S. at 267 (1957) (Frankfurter, J., concurring). The
exercise of judicial judgement is unavoidable, he stated,
and:
[t]o believe that this judicial exercise of judgment

could be avoided by freezing "due process of law" at
some fixed stage of time or thought is to suggest that
the most important aspect of constitutional adjudication
is a function for inanimate machines and not for judges,
for whom the independence safeguarded by Article III of
the Constitution was designed and who are presumably
guided by established standards of judicial behavior.
Even cybernetics has not yet made that haughty claim.
Rochin, 342 U.S. at 171. That judgment must be exercised

did not mean, however, that "judges are'wholly at large."
Adamson, 332 U.S. at 68. What is required in each case is
an evaluation based on a disinterested inquiry pursued

in the spirit of science, on a balanced order of facts
exactly and fairly stated, on the detached consideration
of conflicting claims, . . . on a judgment not ad hoc
and episodic but duly mindful of reconciling the needs
both of continuity and of change in a progressive
society.
Rochin, 342 U.S. at 172. He recognized that "(t]o practice

the requisite detachment and to achieve sufficient objectivity
no doubt demands of judges the habit of self-discipline and
937
If-criticism, incertitude that one's own views are incon-

testable and alert tolerance toward views not shared." Id.
at 171. "But," he stressed, "these are precisely the pre-
suppositions o our judicial process. They are precisely the
qualities society has a right to expect from those entrusted
with ultimate judicial power. Id. at 171-72.
10
938
Appendix B
JUSTICE HARLAN
AND THE DUE PROCESS CLAUSE
OF THE FOURTEENTH AMENDMENT
Justice John Harlan shared many of Justice

Frankfurter's views regarding the interpretation of the lib-
erty interest encompassed within the due process clause of the
Fourteenth Amendment. Like Justice Frankfurter, he belieVed
that Justice Cardozo's opinion in Palko v. Connecticut,* 302
U.S. 319 (1937), set forth the proper approach. And like
Justice Frankfurter,, he argued for a conception of the due
process clause that was flexible, independent of but drawing
support from the Bill of Rights, open to reexamination and
evolution, and that called for the exercise of considered
judgments by courts and depended on the exercise of disci-
plined judicial self-restraint.
The majority of Justice Harlan1s opinions interpre-

ting the due process clause concerned the rights of criminal
defendants and thus carried on the Frankfurter-Black incorpo-
ration debate. But the clearest and most expansive expositions
of Justice Harlan's views on liberty and due process are found
* The holding "in Palko, that federal double jeopardy

standards were not applicable against the states, was
overruled in Benton v. Maryland, 395 U.S. 784 (1969).
939
inPoe v. Ullman, 367 U.S. 497, 539-45 (1961) (Harlan, J.,

dissenting), and Griswold v. Connecticut, 381 U.S. 479, 499
(1965) (Harlan, J., concurring in the judgment), which
extended the substantive due process analysis into the realm
of personal privacy.
In Poe the Court declined to reach the merits of a

constitutional challenge to Connecticut's ban on the use of
contraceptives. In his dissenting opinion Justice Harlan
disagreed with the dismissal of the challenge on procedural
grounds, and stated that on the merits the Connecticut law
should be struck down as "an intolerable and unjustifiable
invasion of privacy in the conduct of the most intimate con-
cerns of an individual's personal life." 367 U.S. at 539.
Acknowledging that the challenges to the Connecticut law drew
"their basis from no explicit language of the. Constitution,"
id., he proceeded to set forth at some length what he thought
to be the appropriate constitutional framework:
Due process has not been reduced to any

formula; its content cannot be determined by reference
to any code. The best that can be said is that through
the course of this Court's decisions it has represented
the balance which our Nation, built upon postulates of
respect for the liberty of the individual, has struck
between that liberty and the demands of organized
society. If the supplying of content to this Constitu-
tional concept has of necessity been a rational process,
it certainly has not been one where judges have felt
free to roam where unguided speculation might take them.
The balance of which I speak is the balance struck by
this country, having regard to what history teaches are
the traditions from which it developed as well as the
940
traditions from which it broke. That tradition is a

living thing. A decision of this Court which radically
departs from it could not long survive, while a decision
which builds on what has survived is likely to be sound.
No formula could serve as a substitute, in this area,
for judgment and restraint.
It is this outlook which has led the Court

continuingly to perceive distinctions in the imperative
character of Constitutional provisions, since that char-
acter must be discerned from a particular provision's
larger context. And inasmuch as this context is one not
of words, but of history and purposes, the full scope of
the liberty guaranteed by the Due Process Clause cannot
be found in or limited by the precise terms of the spe-
cific guarantees elsewhere provided in the Constitution.
This "liberty" is not a series of isolated points pricked
out in terms of the taking of property; the freedom of
speech, press, and religion; the right to keep and bear
arms; the freedom from unreasonable searches and seizures;
and so on. It is a rational continuum which, broadly
speaking, includes a freedom from all substantial arbi-
trary impositions and purposeless restraints, and which
also recognizes, what a reasonable and sensitive judg-
ment must, that certain interests require particularly
careful scrutiny of the state needs asserted to justify
their abridgment.
Each new claim to Constitutional protection

must be considered against a background.of Constitutional
purposes, as they have been rationally perceived and his-
torically developed. Though we exercise limited and
sharply restrained judgment, yet there is no "mechanical
yardstick," no "mechanical answer." The decision of an
apparently novel claim must depend on grounds which
follow closely on well-accepted principles and criteria.
The new decision must take "its place in relation to
what went before and further (cut] a channel for what
is to come." Irvine v. California, 347 U.S. 128, 147
(1954) (Frankfurter, J., dissenting).
367 U.S. at 542-44 (Harlan, J., dissenting) (citations

omitted). Turning to the Connecticut law banning the use of
contraceptives, he stated:
941
This enactment involves what, by common understanding

throughout the English speaking world, must be granted to
be a most fundamental aspect of "liberty," the privacy
of the home in its most basic sense, and it is this which
requires that the statute be subjected to "strict scrutiny.
Skinner v. Oklahoma, supra, [316 U.S. 535,) { ] 541, 549
[(1942 ) ]
That aspect of liberty which embraces the con-
cept of the privacy of the home receives explicit Consti-
tutional protection of two places only. These are the
Third Amendment, relating to the quartering of soldiers,
and the Fourth Amendment, prohibiting unreasonable
searches and seizures. . . .
It is clear, of course, that this Connecticut

statute does not invade the privacy of the home in the
usual sense, since the invasion involved here may, and
doubtless usually would, be accomplished without any
physical intrusion whatever into the home. What the
statute undertakes to do, however, is to create a crime
which is grossly offensive to this privacy, while the
Constitution refers only to methods of ferreting out
substantive wrongs, and the procedure it requires pre-
supposes that substantive offenses may be committed and
sought out in the privacy of the home. But such an
analysis forecloses any claim to Constitutional protec-
tion against this form of deprivation of privacy, only
if due process in this respect is limited to what is
explicitly provided in the Constitution, divorced from
the rational purposes, historical roots, and subsequent
developments of the relevant provisions.
367 U.S. at 548-49. (Harlan, J., dissenting) (citations

and footnotes omitted).
In Griswold the Court reached the merits and

struck down the Connecticut law, concluding that it imper-
missibly infringed on marriage, a "relationship lying
within the zone of privacy created by several fundamental
86-97^ 0 - 8 9 - 3 2
942
constitutional guarantees." 381 U.S. at 485. Justice Harlan

wrote a separate opinion concurring in the judgment but did not
agree with the majority's analysis. He rejected the majority's
search for "some right assured by the letter or penumbra of the
Bill of Rights," 381 U.S. at 499, and stated that the proper
constitutional analysis required an examination of whether the
law "infringes the Due Process Clause of the Fourteenth Amend-
ment because the enactment violated basic values 'implicit in
the concept of ordered liberty,1 Palko v. Connecticut, 302 U.S.
319, 325." Griswold, 381 U.S. at 500. Addressing the concern
that his approach invited judges to "introducfe] their own
notions of constitutional right and wrong," id. at 501, he
stated that even provisions more "specific" than the due pro-
cess clause "lend themselves as readily, to 'personal* inter-
pretations." Id. Moreover, he cautioned, it was illusory to
presume that judicial restraint could be assured by the
"interpolation into the Constitution of an artificial and
largely illusory restriction on the content of the Due Process
Clause," id. at 502. Instead, judicial restraint
will be achieved in this area, as in other constitu-

tional areas) only by continual insistence upon respect
for the teachings of history, solid recognition of the
basic values that underlie our society, and wise appre-
ciation of the great roles that the doctrines of federal-
ism and separation of powers have played in establish-
ing and preserving American freedoms. See Adamson v.
California, 332 U.S. 46, 59 [(1947)(Frankfurter, J.,
concurring)].
943
Griswold, 302 U.S. at 501.
Justice Harlan also wrote at length regarding the

nature of the liberty interest protected by the due process
clause in cases involving the rights of criminal defendants,
and his opinions echo many of the themes elaborated by
Justice Frankfurter in connection with the "incorporation"
debate. His view that the essence of liberty was "fundamen-
tal fairness" led him to interpret the due process clause to
require states to afford defendants a right to confront the
witness against him. Pointer v. Texas, 380 U.S. 400, 408
(1965) (Harlan, J., concurring in the result), to present
proof beyond a reasonable doubt in determination of juvenile
delinquency based on criminal conduct, .In B Winship, 397
U.S. 358, 368 (1970) (Harlan, J., concurring), and to provide
counsel to indigent defendants. Gideon v. Wainwright, 372
U.S. 335, 349 (1963) (Harlan, J., concurring). At the same
time, he interpreted the due process clause to permit a state
to try a criminal defendant without a jury, Duncan v.
Louisiana, 391 U.S. 145, 171 (1968) (Harlan, J., dissenting),
to retry a defendant without running afoul of double jeopardy
restrictions, Benton, 395 U.S. at 801 (1969) (Harlan, J.,
dissenting), and to imprison a person for refusing to give
evidence which may incriminate him. Malloy v. Hogan, 378
U.S. 1, 14 (1964) (Harlan, J., dissenting).
944
Regardless of whether he interpreted the due pro-

cess clause expansively or restrictively, he consistently
advanced his view of "liberty" and "due process" articulated
in his dissenting opinion in Poe. Thus, in his dissenting
opinion in Duncan, he stated that "the very breadth and gener-
ality of the [Fourteenth] Amendment's provisions suggest that
its authors did not suppose that the Nation would always be
limited to mid-19 th century conceptions of 'liberty' and .''due
process of law' but that the increasing experience and evolving
conscience of the American people would add new 'intermediate
premises.'" 391 U..S. at 175. To restrict due process to "rules
fixed in the pas[t] . . . 'would be to deny every quality of the
law but its age, and to render it incapable of progress or
improvement.'" M . at 176-77 (footnote, omitted). Similarly,
in Malloy, in which Harlan wrote a dissenting opinion rejecting
the incorporation of the Fifth Amendment's prohibition against
self-incrimination, he "accepte[d) and agree[d] with the prop-
osition that continuing re-examination of the constitutional
conception of Fourteenth Amendment 'due process1 of law is
required, and that development of the community's sense of
justice may in time lead to expansion of the protection which
due process affords." 378 U.S. at 15.
Like Justice Frankfurter, Justice Harlan recognized

that his approach left the precise scope of liberty and due
process indeterminate, and that "[s]uch an approach may not
945
satisfy those who see in the Fourteenth Amendment a set of

easily applied 'absolutes' which can afford a haven from un-
settling doubt." Jd. at 28. Nonetheless, he insisted, his
approach is "truer to the spirit which requires this Court
constantly to re-examine fundamental principles and at the
same time enjoins it from reading its own preferences into
the Constitution." Id. at 28-9.
946
Appendix C
THE ROLE OF STARE DECISIS

IN SUPREME COURT CONSTITUTIONAL ADJUDICATION
AND
JUDGE BORK'S VIEWS WITH RESPECT TO PRECEDENTS
It has long been accepted wisdom that the Supreme

Court is not meaningfully bound by precedents in constitutional
cases. The doctrine of stare decisis et non quieta movere
stand by the precedent and do not disturb the calm is
generally viewed by the Supreme Court as a useful, but far
from absolute, guiding principle, and Supreme Court pronounce-
ments have typically asserted that in constitutional cases
that doctrine should be given "less weight" than in other
types of cases. In reality, "less weight" translates into
"no weight" whenever a majority of the Court is inclined to
overrule a prior decision, or a particular Justice finds the
precedent inconsistent with his or her strongly-held views
on a particular issue.
One of the earliest statements by the Court concern-

ing the limited role of stare decisis in Supreme Court cases
can be found in The Passenger Cases, 48 U.S. (7 How.) 283, 12
Law. Ed. 702 (1849). There Chief Justice Taney wrote:
After such opinions, judicially delivered, I had supposed

that question to be settled, so far as any question upon
the construction of the Constitution ought to be regarded
as closed by decision of this court. I do not, however,
947
object to the revision of it, and am quite willing that

it be regarded hereafter as the law of this court, that
its opinion upon the construction of the Constitution is
always open to discussion when it is supposed to have
been founded in error, and that its judicial authority
should hereafter depend altogether on the force of the
reasoning by which it is supported.
Id. at 470. Chief Justice Taney did not elaborate a ration-

ale for his views, a task that was left to Justice Brandeis
in an oft-cited dissenting opinion in Burnet v. Coronado Oil
& Gas Co., 285 U.S. 393 (1931). In his opinion Justice
Brandeis drew a distinction between constitutional and other
cases, subsequently invoked by the Court on numerous occasions,
as the basis for relaxing the application of stare decisis in
constitutional cases:
Stare decisis is usually the wise policy, because in

, most matters it is more important that the applicable
rule of law be settled than that it be settled right.
This is commonly true even where the error is a matter
of serious concern, provided correction can be had by
legislation. But in cases involving the Federal Consti-
tution, where correction through legislative action is
practically impossible, this Court has often overruled
its earlier decisions. The Court bows to the lessons
of experience and the force of better reasoning, recog-
nizing that the process of trial and error, so fruitful
in the physical sciences, is appropriate also in the
judicial function.
Id. at 406-08 (footnotes and citations omitted).
The frequency with which the Court has overruled

its prior constitutional decisions has been well-documented.
See Maltz, "Some Thoughts on the Death of Stare Decisis in
948
Constitutional Law," 1980 Wise. L. Rev. 467, 494-96 (1980);

Blaustein & Field, "'Overruling' Opinions in the Supreme
Court," 57 Mich. L. Rev. 151, 167 (1958); Douglas, "Stare
Decisis," 49 Colum. L. Rev. 735, 743 (1949); Burnet, 285 U.S.
at 408 n.3, 409 n.4 (Brandeis, J., dissenting). The Court
has not always felt compelled in each such case to address
overtly the departure from the doctrine of atare decisis.
See, e.g.. National League of Cities v. Usery, 426 U.S. 833,
879 (1976) (Brennan, J., dissenting) (chastising majority for
overruling Maryland v. Wirtz, 392 U.S. 183 (1968), "[wjithout
even a passing reference to the doctrine of stare decisis"),
rev'd, 469 U.S. 528 (1985); Batson v. Kentucky, 106 S. Ct.
1712, 1721 (1986). In a number of recent cases in which the
Justices have explicitly addressed the doctrine of stare
decisis, their pronouncements evidence a willingness, in
some instances eagerness, to reexamine or overrule decisions
they consider to be in error.
In Akron v. Akron Center for Reproductive Health,

462 U.S. 416 (1983), for instance. Justice O'Connor
elaborated her views on stare decisis in the course of
criticizing the framework underlying the Court's decision in
Roe v. Wade, 410 U.S. 113 (1973):
The Court adheres to the Roe framework because the

doctrine of stare decisis "demands respect in a society
governed by the rule of law." Ante, at 420. Although
respect for stare decisis cannot be challenged, "this
949
Court's considered practice [is) not to apply stare

decisis as rigidly in constitutional as in nonconsti-
tutional cases." Glidden Co. v. Zdanok, 370 U.S. 530,
543 (1962)." . . . In constitutional questions, where
correction depends upon amendment and not upon legis-
lative action this Court throughout its history has
freely exercised its power to reexamine the basis of
its constitutional decisions." Smith v. Allwright,
321 U.S. 649, 665 (1944) (footnote omitted).
462 U.S. at 458-59 (O'Connor, J., dissenting). Similarly

Justice White in Richard Thornburgh v. American College of
Obstetricians and Gynecologists, 106 S. Ct. 2169 (19B6)
(White, J., dissenting), wrote at length concerning his views
on stare decisis in the context of urging the Court to over-
rule Roe v. Wade:
The Court has therefore adhered to the rule that

stare decisis is not rigidly applied in cases involving
constitutional issues, see Glidden Co. v. Zdanok, 370
U.S. 530, 543 (1962) (opinion of Harlan, J.)# and has
not hesitated to overrule decisions, or even whole lines
of cases, where experience, scholarship, and reflection
demonstrated that their fundamental premises were not to
be found in the Constitution. Stare decisis did not
stand in the way of the Justices who, in the late 1930s,
swept away constitutional doctrines that had placed
unwarranted restrictions on the power of the State and
Federal Governments to enact social and economic legisla-
tion, see United States v. Darby, 312 U.S. 100 (1941);
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
Nor did stare decisis deter a different set of Justices,
some fifteen years later, from rejecting the theretofore
prevailing view that the Fourteenth Amendment permitted
the States to maintain the system of racial segregation.
Brown y. Board of Education, 347 U.S. 483 (1954). In
both instances, history has been far kinder to those who
departed from precedent than to those who would have
blindly followed the rule of stare decisis.
Thornburgh, 106 S. Ct. at 2193.

950
Perhaps the most candid acknowledgement by the

Justices of the limited hold that precedents have on the
Court can be found in the exchange of views in Garcia v.
San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985), which overruled National League of Cities. Justice
Blackman, writing for the majority, justified the departure
from established precedents as required:
We do not lightly overrule recent precedent. We have

not hesitated, however, when it has become apparent that
a prior decision has departed from a proper understanding
of congressional power under the Commerce Clause. See
United States v. Darby, 312 U.S. 100, 116-17 (1941).
Due respect for the reach of congressional power within
the federal system mandates that we do so now.
Garcia, 469 U.S. at 557 (footnote omitted). Justice Rehnquist,

in a dissenting opinion, decried the abandonment of National
League of Cities and confidently predicted that the principles
underlying that decision would "in time again command the
support of a majority of this Court." ^d. at 580 (Rehnquist,
J., dissenting). Justice O'Connor, in a separate dissenting
opinion, reaffirmed her commitment to the principles enunci-
ated in National League of Cities and stated that she "share[d]
Justice Rehnquist's belief that this Court will in time again
assume its constitutional responsibility . . . acknowledged
by National League of Cities and its progeny." Id. at 589
(O'Connor, J., dissenting).
951
Stare decisis is, of course, invoked on occasion

by a majority declining to overrule a prior decision or by a
dissenting Justice urging adherence to prior authority.
In Arizona v. Rumsey, 467 U.S. 203 (1984), for instance,
Justice O'Connor, writing for the majority in rejecting the
petitioner's suggestion that the Court overrule Bullington
v. Missouri, 451 U.S. 430 (1981), stated that "[a]lthough
adherence to precedent is not rigidly required in constitu-
tional cases, any departure from the doctrine of stare
decisis demands special justification. See, e.g., Swift &
Co. v. Wickham, 382 U.S. Ill, 116 (1965); Smith v. Allwright,
321 U.S. 649, 665 (1944)." Arizona, 467 U.S. at 212. Simi-
larly, Justice Powell in Akron wrote in defense of Roe v. Wade
that "stare decisis, while perhaps never entirely persuasive
on a constitutional question, is a doctrine that demands
respect in a society governed by the rule of law." 462 U.S.
at 420 (footnote omitted). See also Oregon v. Kennedy, 456
U.S. 667, 691-2 n.34 (1982) (Stevens, J., concurring (qupting
Green v. United States, 355 U.S. 184, 215 (1957)) (Frankfurter,
J., dissenting) ("We should not be so unmindful, even when
constitutional questions are involved, of the principle of
stare decisis. . . . [T]he conviction borne to the mind of
the Tightness of an overturning decision must surely be of a
highly compelling quality to justify overruling a well-
established precedent when we are presented with no
952
considerations fairly deemed to have been wanting to those

who preceded us.")
Notwithstanding the occasional admonition to adhere

to precedents absent "special" or "compelling" reasons,
the prevailing view among the Justices appears to be that
precedents do not represent a serious obstacle to the over-
ruling of prior constitutional decisions perceived as
erroneous. Nearly 45 years ago Justice Reed in Smith v.
Allwright, 321 U.S. 649 (1944), summarized succinctly
the Court's view of the binding quality of precedent in con-
stitutional cases when he wrote: "(W]e are not unmindful of
the desirability of continuity of decision in constitutional
questions. However, when convinced of former error, this
Court has never felt constrained to follow precedent. . . .
This has long been accepted practice, and this practice has
at
continued to this day." M- 665 (footnotes omitted).
Those words are equally applicable today.
As indicated in the testimony, Judge Bork has made

a number of statements regarding how a Justice should handle
constitutional decisions with which he disagrees. These are
set forth below:
953
Since the legislature can do nothing about the

interpretation of the Constitution given by a
court, the Court ought to be always open to
rethink Constitutional problems. . . .
. . . [A]t bottom, a judge's basic obligation or
basic duty is to the Constitution, not simply to
precedent.*
Supreme Court justice[s] always can say . . .

their first obligation is to the Constitution, not
to what their colleagues said 10 years before,**
[I]f a court became convinced that it had made a
terrible mistake about a constitutional ruling in
the past, I think ultimately the real meaning of
the Constitution ought to prevail over a prior
mistake by the court.***
Certainly, at the least, I would think an original!st
judge would have no problem whatever in overruling
a hon-originalist precedent, because that precedent
by the very basis of his judicial philosophy, has
no legitimacy. It comes from nothing that the
framers intended.****
* "A Talk with Robert H. Bork," District Lawyer, v. 9.

no. 5, p. 32, May/June 1985.
** "Justice Robert H. Bork: Judicial Restraint Personified,
California Lawyer, May 1985.
*** Confirmation of Federal Judges: Searings Before the
Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 1, 13
(hereinafter "19B2 Confirmation Hearing").
**** Transcript, Speech to the Federalist Society, January
31, 1987, p. 126. The same argument is handwritten in the
prepared text of the speech, p. 4. ("no problem w/originalist
judge overruling non-originalist decision").
8
954
The CHAIRMAN. Thank you, Mr. Secretary.
I have been requested by the minority to swear in the witnesses.
It is a little after the fact.
Would you stand to be sworn at least for the questioning period?
Do you swear to tell the whole truth and nothing but the truth
so help you God?
Mr. COLEMAN. I do.
The CHAIRMAN. NOW I will yield to my colleague from South
Carolina. I am sorry. The minority reminded me that I had not
sworn. We are sworn at all hearings. I am not suggesting the mi-
nority is asking to be sworn this one time. I was pointing out that
the minority reminded me that I did not swear.
Mr. COLEMAN. I know the leader of the minority, and I am pretty
sure he would never ask me to do anything he would not ask any-
body else to do.
Senator THURMOND. Mr. Chairman, as I understand it, it is cus-
tomary to swear all witnesses.
The CHAIRMAN. That is correct.
Senator THURMOND. And it is not just a minority request. That is
the policy of the committee.
The CHAIRMAN. That is correct, Mr. Chairman, Mr. ranking
member chairman.
By the way, I yield to the Senator from South Carolina.
Senator THURMOND. Mr. Secretary, you made the initial investi-
gation of Judge Bork, I believe, for the Court of Appeals for the
District of Columbia. Is not that correct?
Mr. COLEMAN. Yes, sir.
Senator THURMOND. What finding did they make at that time?
Mr. COLEMAN. It was reported to you that they found that Judge
Bork was exceptionally well-qualified to be a Judge of the United
States Court of Appeals for the District of Columbia.
Senator THURMOND. Mr. Secretary, is not the criteria for the
court of appeals the same as for the Supreme Courtprofessional
competence, judicial temperament and integrity?
Mr. COLEMAN. The way you ask that question, sir, I would have
to say no, or I could say yes, but. Now you can take it either way.
I would refer you to the ABA document, in particular the second
part, and I call the attention of Senator Heflin to page 44 of my
testimony, where I quote the portion which is applicable only to a
person who is going to be considered for a Justice of the Supreme
Court. That portion is not applicable to a person who is going to be
considered for the court of appeals.
Senator THURMOND. In the American Bar Association's Standing
Committee on Federal Judiciary, on page 3 "Evaluation Criteria" it
is entitled, "The Committee's evaluation of the perspective nomi-
nees to these courts is directed primarily to professional qualifica-
tions, that is competence, integrity and judicial temperament."
And so that would be the same as the Supreme Court on page 7
reads, "The Committee's investigation of perspective nominees to
the Supreme Court is limited to their professional qualifications,
their professional competence, judicial temperament and integri-
ty."
So it would be about the same criteria, would it not?
955
Mr. COLEMAN. No, sir. They are separate. And I would ask you to
reread them, and you will find, I think, when you read "this
court," you were talking about the district courts and the court of
appeals.
Senator THURMOND. Mr. Secretary, is your testimony today as an
individual or on behalf of an organization?
Mr. COLEMAN. My testimony today, sir, is as an individual. I do
put in a footnote on the first page of my written testimony that I
do think that I do need to disclose that I am a member of the Legal
Defense Fund. I was, until I became Secretary of Transportation,
its non-employee President. After I left office, I became its non-em-
ployee chairman of the board.
I indicate to you in the testimony the connection I have had with
the Legal Defense Fund on this matter. I appear here as William
T. Coleman, Jr., a practicing member of the bar, and as a citizen. I
am not appearing here on behalf of the fund, and I so disclosed
that in my testimony.
Senator THURMOND. But you are chairman of the board of the
NAACP Legal Defense Fund?
Mr. COLEMAN. I am chairman of that board.
Senator THURMOND. That is all. Thank you very much, sir.
The CHAIRMAN. We are going to gothis is unusual, but we will
continue on the same side of the aisle since we yielded time.
Senator Hatch.
Senator HATCH. Well, thank you. Welcome to the committee, Mr.
Coleman.
Mr. COLEMAN. Thank you, Senator.
Senator HATCH. I have appreciated your testimony through
many years and I have appreciated our personal relationship
through those years as well.
Now Senator Thurmond has brought up that actually you headed
the investigation of the American Bar Association back in 1981 and
1982. Is that correct?
Mr. COLEMAN. I was the member from D.C. and, since the ap-
pointment was for the D.C. Circuit, it was my initial responsibility
and I did it.
Senator HATCH. Right. The important thing is that back in 1981
in his nomination for the Circuit Court of Appeals for the District
of Columbia your investigating committee for the American Bar
Association gave him the highest possible rating that a judgeship
nominee could have for that position.
Senator HATCH. And that rating was exceptionally well qualified.
Mr. COLEMAN. Qualified for the court of appeals.
Senator HATCH. NOW let me ask you this: Has Judge Bork's
record on the appellate bench done anything to diminish his profes-
sional competence, which is one of the three major criteria that
you had to consider, in your opinion?
Mr. COLEMAN. AS a judge on that court, his opinions are good
opinions. I would say that he is darn good, because every case I
argued before him I think he voted my way, sobut I am slightly
disturbed by the recent rehearing controversy and I have not
looked into that, but
956
Senator HATCH. But my point is, you do not know anything that
would diminish his professional competence as a judge?
Mr. COLEMAN. As a judge on the court of appeals.
Senator HATCH. Right. You would agree, he is professionally
competent?
Mr. COLEMAN. AS a judge on the court of appeals.
Senator HATCH. Okay. Now, in 1981, you also agreed that Judge
Bork met the highest standards of professional integrity, is that
correct?
Mr. COLEMAN. Yes.
Senator HATCH. And do you know of any event since 1981 which
would cast doubt on Judge Bork's highest standards of professional
integrity?
Mr. COLEMAN. I know of none, and more important, I heard the
chairman of this committee, on Saturday say that he had looked
through the FBI report, and there was nothing in there which
would in any way cast doubt on his integrity.
Senator HATCH. That is right. Now, finally, in 1981, you and your
committee unanimously found that Judge Bork, based on his
record, evidenced the highest standards of judicial temperament, is
that correct?
Mr. COLEMAN. Yes, and I thought that Senator Simpson defined
it correctly. I could not get the page reference of the testimony be-
cause I did not hear it until Saturday afternoon, but I think my
friend Senator Simpson, who has been in print a lotand I take
his definition of what is meant by "judicial temperament"stated
that a judge that acts courteously towards you, is understanding
toward the counsel, and does not "chew you out" too much in front
of your clients, embodies what is meant by judicial temperament.
Senator HATCH. I think all of us
Mr. COLEMAN. DO you recall when you made that statement, sir?
Senator SIMPSON. That is good.
Senator HATCH. I think all of us trial lawyers would agree with
that, I will tell you.
Senator SIMPSON. That is close enough, Bill. That is right.
Mr. COLEMAN. What, sir?
Senator SIMPSON. That is close enough, Bill. I like that.
Mr. COLEMAN. And that is all it means. It does not mean that he
is well suited or qualified to handling the great issues which you
are asking him to handle.
Senator HATCH. Well, and he is on the circuit court of appeals
and he will be on the Supreme Court as well.
Mr. COLEMAN. NO, he is not. No. That is the problem. On the
great issues, namely, the fundamental liberty of every American
citizen, he has not had a case in that area.
Senator HATCH. Well, I submit that he has.
Mr. COLEMAN. Other than the homosexual case.
Senator HATCH. I think he has.
Mr. COLEMAN. And that is the only case. I mean, you read that
line of cases. I checked them. That is the only case he has had.
Senator HATCH. And that is the Dronenburg case that we are
talking about
Mr. COLEMAN. That is right.
957
Senator HATCH [continuing]. And that was sustained by the
Bowers v. Hardwick case by the Supreme Court itself.
Mr. COLEMAN. Yes. But the fact is, after he has been on the
bench, he has publicly stated that that line of cases, from Near v.
Minnesota, through the last term, are not constitutionally based.
With respect to the Griswold case, he says there is no basis in the
Constitution, and, quote, "It's unconstitutional."
Senator HATCH. NOW let me go a little bit further here. I was
mentioning about the high standard of judicial temperament. Now
do you think that Judge Bork's well-known appellate record in any
way undermines your confidence in his judicial temperament?
Now let me cite, with particularity. Specifically I call your atten-
tion to the fact that he has been in the majority in 95 percent of
the 416 cases in which he has participated. That he authored
during that time only 20 dissenting opinions, six of which were
adopted by the Supreme Court on review.
Do you have any evidence, whatsoever, that would cast doubt
upon his judicial temperament, the third category? The other two
you have agreed with.
Mr. COLEMAN. What I am saying is that the judicial tempera-
ment is what I think Senator Simpson said it was. I would like to
call your attention, though, to page nine of the appendix relating
to Justice Frankfurter's views on what it takes to be a good judge.
Every time you start talking about these statistics, it concerns me,
because when you judge, you have got to look at each case, and
somebody can have a great record, if he is not exposed to the great
cases.
Senator HATCH. Well, that is right.
Mr. COLEMAN. And he has not been exposed to the great cases as
a judge. As a scholar, he has reached out, and he discussed them,
and with respect to the whole line of liberty cases, privacy cases,
his discussions are completely contrary to what the Court has said.
For a long time, my good friend, Lloyd Cutler said, "Oh, but at
least he agrees with Potter Stewart." That is not so, because Potter
Stewart finally, in his concurring opinion in Roe v. Wade said, I
now agree that there is this line of cases, there is substantive due
process, and we've applied it.
Senator HATCH. Well, you know, you say he has not handled the
major great cases, but yet I might just give you a couple of signifi-
cant civil rights issues that he voted on. The voting rights case in
Sumter County, South Carolina. The equal pay for women case in
Matthew v. Palmer. The title VII cases that he decided. Those are
all great cases.
Mr. COLEMAN. NOW wait a minute. Look, to the two litigants
every case is a great case.
Senator HATCH. Well
Mr. COLEMAN. But wait.
Senator HATCH. Anybody looking at a great case
Mr. COLEMAN. Each one of those cases
Senator KENNEDY. Can he answer the question, Mr. Chairman? I
am trying to follow the dialogue, and I would like to make sure
that he is able to answer the question without interruption.
Mr. COLEMAN. Each one of those cases dealt with the interpreta-
tion of a statute. That great voting case that you described on tele-
958
visionI went back and I looked at it. All that case involved was a
statute saying that certain States, in order to make a change in
their voting laws, have to get preclearance from the Attorney Gen-
eral's office. The State did not get preclearance, it tried to review
that in the court of appeals, and Judge Bork wrote an opinion ap-
plying the statute.
Now the other case you citedand this one really surprised me
at about 1:00 o'clock in the morning last nightis the Runyon case,
which is the civil rights case.
Senator HATCH. Versus McCrary which he argued as Solicitor
General.
Mr. COLEMAN. He did not argue, sir. With all due respect to you,
when I pulled that book down and checked to see who made the
oral argumenthe did not make the oral argument. That was a
case decided after Jones v. Mayer, and by that time you did not
have to be much of a lawyer to go in and convince a court that the
Act of 1866 applied.
Senator HATCH. I agree with that, too.
Mr. COLEMAN. In that case the black plaintiff won below and the
other side sought review by the Supreme Court of the United
States, and certiorari was granted. The United States filed a brief
as amicus curiae. Stan Pottinger, who was the Assistant Attorney
General for Civil Rights, recommended that the U.S. Government
get into the case, as did Deputy Attorney General Larry Wallace,
who you must know because he is the lawyer who had the courage
to take the position he did in the Bob Jones case.
Judge Bork signed that brief.
Senator HATCH. Yes. He filed the brief.
Mr. COLEMAN. But he did not argue the case.
Senator HATCH. Well, the brief is the argument, and he
Mr. COLEMAN. What?
Senator HATCH. The brief is the
Mr. COLEMAN. Well, if you go back to the practice of law, when
you just file a brief or amicus curiae, don't argue the case, and you
submit a big bill the client says for what
Senator HATCH. NO, no. Wait. Bill, we understand who argued,
but it was his brief filed in that case, making that point that was
argued by another attorney under his direction as Solicitor Gener-
al.
Mr. COLEMAN. NO, no. The point was, the Government did not
argue the case. The Government, along with about ten other ami-
cuses, filed a brief.
Senator HATCH. Okay. I understand he did not personally argue
the case. Let me ask you this, Mr. Coleman.
Mr. COLEMAN. And also I want you to look at my footnote
The CHAIRMAN. Please.
Mr. COLEMAN. I want you to look at my footnote, sir
The CHAIRMAN. Sir, Mr. Coleman. I want you to be able to
answer the question fully, and just as with Judge Bork, every wit-
ness before us will have a full opportunity.
Now would you like to complete the answer to that question?
Mr. COLEMAN. Yes. I want to complete the answer, which is I
have a footnoteand I will tell you what page it is onwhere,
during Judge Bork's confirmation hearings for his nomination to
959
be Solicitor General of the United States, I think it was Senator
Tunney who was concerned because just before Judge Bork testi-
fied the committee had heard from the Assistant Attorney General
for Antitrust, whose testimony as to how he was going to enforce
the antitrust laws different from positions Judge Bork had taken in
his antitrust writings.
I would ask you to re-read that hearing, in which Judge Bork
said if I am confirmed, I will be a lawyer for the Government, and
if the Assistant Attorney General for antitrust takes a position,
that is the position I will take in the United States Supreme Court
for the Government, even though, intellectually, I may disagree
with that position. And that is what he is supposed to do.
Senator HATCH. YOU are finished. Let me understand this clear-
ly, Mr. Coleman. You led the investigation as a representative of
this district
The CHAIRMAN. Time is up but I would like you to continue. We
are not going to cut anybody off, but I just want you to go on
Senator HATCH. Well, I will just make this
The CHAIRMAN. NO, no. Go on as long as you want. This is very
important testimony, and take as much time as you want.
Senator HATCH. All right. You led the investigation resulting in
then Mr. Bork receiving the highest rating of the American Bar
Association back in 1981. There was not a single dissenting vote.
All or most of the materials upon which you based your opinion,
and your current opinion of Judge Bork, all of those materials were
public then.
Mr. COLEMAN. That is not so, sir.
Senator HATCH. Well
Mr. COLEMAN. That is not so.
Senator HATCH. Okay. Go ahead.
Mr. COLEMAN. Well, the fact is that since he has been on the
bench in 1982, he has made a lot of speeches, and I have a footnote
where you can see all the speeches
Senator HATCH. All right. That is fair.
Mr. COLEMAN [continuing]. And he has reiterated and said the
same thing. Secondly, when I made that investigation, Iyou
knowyou call people up, and you try to do the work. As you
know, this time, from the moment he was nominated, the White
House began to send out materials, and other people also sent out
materials. The materials come across your desk and you read it,
and I would say that today, I can make a much better examination
of Judge Bork than I was able to in 1981.
Senator HATCH. All right. But you are saying as of 1981, when
you rated him exceptionally well qualified, that basically, you
found no real reason, as you do today, to stand against his particu-
lar appointment at that time. In spite of all this
The CHAIRMAN. Senator, I think, with fairness, the judge has
said, or the Secretary has said a half a dozen times
Mr. COLEMAN. I am not a judge.
The CHAIRMAN. NO. But the Secretary has said a half a dozen
times, that the distinction between the circuit court of appeals and
the Supreme Court are, in his view, fundamentally different.
960
Senator HATCH. Well, my question, if you will notice, Mr. Chair-
manand I would appreciate it if it is not interruptedwas not
that he iswe are talking about the Supreme Court now. We were
talking about the circuit court of appeals at that time, and that
was what my question was limited to.
The CHAIRMAN. Then you went on to say as you
Senator HATCH. Then I would have gone on and asked a question
with regard to the Supreme Court. With that, I will just make this
comment.
Most of his writings that he has been criticized for occurred
before that particular investigation back in 1981.
Mr. COLEMAN. With all due respect, sir, that is not true.
Senator HATCH. Well, there have been some since, there is no
question. Most of them, most of the ones
Mr. COLEMAN. If you are examining a witness and you say most
happened before such and such a date, and 30 percent happened
after that date, I do not expect the witness to say yes.
Senator HATCH. Fine. But I am saying that the point I am
making is, that apparently, based upon the writings up to that
date, you and your committee unanimously rated him exceptional-
ly well qualified.
Now the only thing I am going to say is that you found also
those three criteria to be in order. Professional competence, profes-
sional integrity, and of course judicial temperament.
And I do notwith all due respect to you as a friendI do not
see where any of those three factors have changed between 1981
and today. In fact I see a lot of cases where he has ruled in favor of
minority groups, and of course has done so many other things that
are worthwhile.
In the Dronenburg v. Zech case, that was upheld by the Supreme
Court. With regard to the illegitimate child case, you say that an
illegitimate child will not muster legislative support to vindicate
his or her inheritance rights.
Well, Judge Bork has made it clear, that he, as a Justice, would
enforce an illegitimate's rights case under the equal protection
clause.
Thus, if there is no reasonable distinction
Mr. COLEMAN. Where did he make that clear?
Senator HATCH. He has made that point, I thought, in his testi-
mony here.
Mr. COLEMAN. Oh, wait now. Oh, now wait.
Senator HATCH. Let me finish my comment.
Mr. COLEMAN. Can I take you through his writings, though?
Senator HATCH. Well, let me finish my comment, and then you
can gladly correct me, if you can.
Thus, I think if there is no reasonable distinction between legiti-
mate and illegitimate children. Judge Bork would strike down the
State law that makes such a distinction in inheritance rights. I be-
lieve he made that case in the Shelley case.
Let me just finish it, and then I will turn it over to you.
In the Shelley v. Kraemer case, which you criticized, because he,
as a law professor, criticized Shelley v. Kraemer, and, by the way,
he did that before 1981. That was the case involving restrictive
racial covenants.
961
Judge Bork did not object to the holding of that case, only the
reasoning, and since that time, the Supreme Court has questioned
its own reasoning, and it has confined Shelley, that particular case,
to its facts, and I cite with particularity the Moose Lodge case, or,
Lugar v. Vinson.
Mr. COLEMAN. Well, with all due respect, sir, you are wrong. I
cite cases just 3 years ago
Senator HATCH. Well, let me finish.
Mr. COLEMAN [continuing]. Where Chief Justice Burger says
Shelley is good law.
Senator HATCH. I am going to give you a chance to say whatever
you would like, but, as to its results, Judge Bork, as Solicitor Gen-
eral, it seemed to me, as Solicitor General, his group the Runyon v.
McCrary case.
Mr. COLEMAN. With all due respect, that is not so. A black
lawyer and a black plaintiff won that case.
Senator HATCH. Fine. That is fine, but he was Solicitor General
at the time, and he said that he backed it, and that he believed it,
and that he believes it to this day.
And he basically has stated here that he would never rule to
overrule the Shelley v. Kraemer case, and I think that it is a mis-
leading thing to come in and say that you think he would.
Mr. COLEMAN. Sir, I did not say he would.
Senator HATCH. But you criticized him.
Mr. COLEMAN. I must say, I would notI do not think any judi-
cial official should come here and tell you what he would do on a
case.
Senator HATCH. I do not either.
Mr. COLEMAN. And if he tells you, I think that puts in question a
problem. But you certainly have to look at what he said and wrote
as a scholar, as to what he feels about this. Can I explain one
thing? You asked me about his views regarding illegitimacy, and,
really, look: you start off with the fact that any time you pass a
statute, and you say "a" has something, "b" has something differ-
ent, you have made a distinction. The 14th amendment mandates
equal protection. One could argue that unless a statute treats ev-
erybody the same, the statute is unconstitutional. You do not do
that. It is clear that if you are too arbitrary you violate the 14th
amendment.
But when you are dealing with women, or illegitimate children,
there are certain areas where you can rationalize and make a dis-
tinction, and for a long time the Court said that is all you had to
do. Take, for example, that case that I called your attention to
where the Supreme Court in about 1881 reviewed a State statute
which prevented women from practicing law. The legislation gave
reasons for that: that women should stay in their homes, or they
may be more excitable, and gave a lot of other reasons for it.
The Supreme Court upheld that statute on the ground that it
was reasonable. In a series of recent decisions, including decisions
written by Justice O'Connor, the Court has said that when dealing
with questions of sex, the Constitution requires heightened scruti-
ny of distinctions.
Now what does that mean? It means that the State has to say
there is an important and significant reason for making this dis-
962
tinction. They also have to say, and be able to demonstrate to a
judge, that there is a cognate relationship between what they are
doing, and the means that they are trying to use to do it. In addi-
tion, the State has to go into court and say we are doing that for
these reasons, and in our best judgment, we cannot find another
reason to accomplish the same result.
Now that is heightened scrutiny. Now when you apply just a rea-
sonableness standard, you lose a lot of cases under that, that you
would not lose if you applied heightened scrutiny.
Now, as I understood Judge Bork's testimony, under additional
questioning his position continually changed, and by the time he
was finished, you might also say that he means something like
heightened scrutiny under a different name.
I ask two questions. Why do you have to invent a new term when
there is already substantial agreement on the current approach,
and every federal district judge, every State court judge knows
what the law is under the current system? And if you really apply
only a reasonableness standard, which I think puts us back to
where we were, is it so clear that, for instance, the original statute
that said women do not have the right to practice law would be
held unconstitutional?
But under the heightened scrutiny test, I know it is not constitu-
tional.
Senator HATCH. My time is up, Mr. Chairman.
The CHAIRMAN. Thank you. I also failed to do something else,
and that was to indicate that I think it is appropriate at this
pointthat you were a former Secretary of Transportation.
Were you a Democrat or a Republican at that time?
Mr. COLEMAN. Sir, sir, you know whatI am notLook. I
The CHAIRMAN. It is important for the record. Right?
Mr. COLEMAN. NO. I just do not think one shows class if one is
testifying, or if I were to write an article in support of a Democrat,
for instance, to make a point of one's party affiliation. I would say
that I had worked in a Republican administration.
I am up here based on what I have written and said. I want you
to read it, and if you disagree with it, that is your right, but I am
not up here to flag-wave the fact that I am in another political
party or any other reason.
The CHAIRMAN. Let me ask you a question. It has been stated by
several here, and at least implied by others, that Judge Bork is at
least in part of the mold of Felix Frankfurter. You clerked for
Felix Frankfurter, I understand, on the Supreme Court; is that cor-
rect?
The CHAIRMAN. IS Judge Bork, in your view, in his judicial phi-
losophy similar to Felix Frankfurter's?
Mr. COLEMAN. Well, as a judge, Judge Bork has not had the op-
portunity to handle the great issues that Justice Frankfurter had
to handle. If I measure Judge Bork only by his writings, in my
judgment, whatever his views are with respect to judicial restraint,
they are not the views that I think that Justice Frankfurter had
and wrote about. And in the appendix dealing with Justice Frank-
furter, I have quoted those views.
963
Mr. COLEMAN. The same with Justice Harlan. I think in Justice
Harlan's writings there is some very moving language about the
duty of a Justice and what judicial restraint really means. And I
think you kid yourself honestly when you say you can divine origi-
nal intent by reading the words. I ask any of you, what words can
you find in the Constitution that are more specific than that you
have to have a trial by jury? But once haying said that, a judge has
to determine what is meant by trial by jury. When I came to the
Bar and I think, Senator Specter, when you came to the Bar, it was
generally thought those words in the Constitution meant that the
jury had to be 12, it had to be unanimous, it had to pass upon facts.
Now, despite that language, if you read the cases today, you will
find that a jury is a constitutional jury if it is, I have seen, at least
down to six, and it can decide by a two-thirds vote.
Now, believe me, from everything I had learned at law school, I
would have said that such juries are unconstitutional but as time
has gone on, they are now determined to be constitutional.
The CHAIRMAN. I yield to the Senator from Ohio.
Senator METZENBAUM. Mr. Secretary, I want to thank you for a
very scholarly, clear presentation. I have not read your entire pres-
entation, but I have looked through it enough to know that it zeros
in on some of the very points about which this committee is con-
cerned.
I think the written presentation that you made in connection
with the difference between the evaluation of Judge Bork when he
was up for confirmation to the circuit court of appeals and the
present evaluation is so clear, clearly stated, and because I feel my
colleague from Utah may have attempted to confuse that issue, I
think that I am going to just read that.
I quoteand when I use the phrase "quote" in my quote, I will
be quoting from the ABA's rules themselves because that is what
you have done. On Page 43 of your presentation, "The ABA's pro-
cedure and rating for Supreme Court nominees 'differ,' and 'are
dealt with separately' in the ABA's investigation and rating
system. The standard guiding that evaluation of nominees is com-
pletely different. It is still limited to their professional qualifica-
tionstheir professional competence, judicial temperament and in-
tegrity,' but there are other factors considered which are not rele-
vant to a court of appeals nominee. The instructions provide: 'The
significance, range and complexity of the issues considered by the
Supreme Court, the importance of the underlying society problems,
the need to mediate between tradition and change and the Su-
preme Court's extraordinarily heavy docket are among the facts
which require a person of exceptional ability. To fulfill the respon-
sibilities of a Supreme Court Justice'this is all within the quote
'it is not enough that one be a fine person or a good lawyer.' "
Carrying on your language, "These factors were never considered
when Judge Bork's qualifications for the court of appeals were
passed upon."
You then go on to say that "there are other reasons why the
ABA Judiciary Committee's findings relative to Judge Bork's quali-
fications for the D.C. Circuit are not conclusive here," and I will
not read that further.
964
I read that because I thought that it was so lucidly sta,
cinctly stated that we ought not to have any further ques,
the difference between confirming Judge Bork to the circu
of appeals and confirming Judge Bork to the Supreme Court.
Mr. COLEMAN. I would like to ask Senator Hatch and Sei.
Thurmond: If I had gone further and determined that beca _
someday Judge Bork could get on the Supreme Court, I should
either outwardly or inwardly let that affect my judgment, do you
think that would have been fair to Judge Bork at that time?
Senator HATCH. I think it would have been fair to him. I agree
that was not your obligation.
Mr. COLEMAN. YOU said it would have been fair to him?
Senator HATCH. Sure. Sure, I do not see any problem because I
think he would have come out well both ways at that time. I think
there is a difference between that time and now that you are faced
with the reality that he is going on the Supreme Court. I think
that makes the difference.
You know, when you say the difference is "the significance,
range and complexity of the issues considered by the Supreme
Court, the importance of the underlying society problems, the need
to mediate between tradition and change and the Supreme Court's
extraordinarily heavy docket are among the factors which require
a person of exceptional ability," I think you have to conclude, if
you have watched Bork's record at all, that he is a person of excep-
tional ability who would fill every one of those qualifications.
I think the difference here is that we are faced with the fact that
he may very well go on the Supreme Court. I know you are sincere
and I appreciate that and I have great respect for you, but, yes, I
think you could have, but not as a member of the ABA you should
not have at that time.
Mr. COLEMAN. That is all I am saying.
Senator THURMOND. I want to say, since you directed it to me,
too, that his opinions on the circuit court speak for themselves.
That is what counts. Any writings he may have made in connection
with being a professor of law, as a practitioner or something is dif-
ferent. But his opinions on the circuit court are what counts.
Again, I want to remind you, and I have here, as I stated, the
rules of the ABA on this question, on Page 7, "Evaluation Criteria
and Ratings, the Committee's investigation of prospective nominees
to the Supreme Court is limitedI repeat"is limited to their pro-
fessional qualifications." Then it continues: "their professional
competence"have you any trouble with Judge Bork's professional
competence?
Senator METZENBAUM. Mr. Chairman, I didn't interrupt
Senator KENNEDY. I think the Senator
Senator THURMOND. " . . . judicial temperament"
Senator KENNEDY. Both the Senators have responded to the
Senator THURMOND [continuing]. "And integrity," those three
things. As I understood it, you had no question
Senator KENNEDY. The Senator will have an opportunity to ques-
tion
Senator HATCH. Let the Senator finish. He is ranking minority
member. Let him finish and then let us go from there.
Senator METZENBAUM. Mr. Chairman, I have not
965
Senator THURMOND. We gave you all so much time. What are
you quibbling about?
Senator METZENBAUM. I am not quibbling.
Senator THURMOND. YOU took over a half an hour.
Senator METZENBAUM. Who took over a half an hour?
Senator THURMOND. YOU took over a half an hour. Now you are
quibbling over 2 minutes.
Senator METZENBAUM. I took over a half an hour?
Senator KENNEDY. We will be in order. The Senator has not
taken a half an hour.
Senator THURMOND. This witness
Senator METZENBAUM. I took 2 minutes.
Senator KENNEDY. We will be in order, and we will go back to
the questioning from the Senator from Ohio.
Senator METZENBAUM. Mr. Chairman, I thought
Mr. COLEMAN. As a matter of personal privilege, could I ask that
the Senator from South Carolina ask me the question? I would like
to put the answer on the record, if you do not mind, sir.
Senator THURMOND. I just stated that, "The committee's investi-
gation of prospective nominees to the Supreme Court is limited to
their professional qualifications." That means "their professional
competence, judicial temperament and integrity."
Now, do you have any question about his professional compe-
tence?
Mr. COLEMAN. I have no doubt about his professional compe-
tence.
Senator THURMOND. DO you have any question about his judicial
temperament?
Mr. COLEMAN. I have no question about his judicial tempera-
ment.
Senator THURMOND. DO you have any question about his integri-
ty?
Mr. COLEMAN. I have none, but I would ask you
Senator THURMOND. Well, then, that is whatlet me get through
now.
Senator KENNEDY. The witness
Senator THURMOND. I do not care. Let me get through.
Senator KENNEDY. The witness will be permitted to answer
Senator THURMOND. YOU have been cutting me off and now you
are cutting him off.
Senator KENNEDY. I have not. Just as soon as
Senator THURMOND. Well, let him get through. He started to
answer, and you cut him off.
Senator KENNEDY. The witness will be permitted
Senator THURMOND. Let him get through his answer.
Senator KENNEDY. That is exactly what I
Senator THURMOND. He has got a right to finish answering.
Senator KENNEDY. That is exactly what he wants to do.
Mr. COLEMAN. I would just urge you to read the rest of the para-
graph, and you will see that there are other things in the para-
graph, sir.
Senator THURMOND. SO you have no question about any of the
three of those?
966
Mr. COLEMAN. Then read the rest of the paragraph, and you will
find that, like ofttimes
Senator THURMOND. It merely elaborates on those three things.
Mr. COLEMAN. Well, then, if what you are saying is that the sen-
tences that Senator Metzenbaum read go back and qualify those
three things, then I do have problems. If that is what you are
saying, then I do have problems.
The CHAIRMAN. I apologize for leaving. [Laughter.]
Senator KENNEDY. YOU missed a lot, Joe.
The CHAIRMAN. Where are we?
Senator KENNEDY. Senator Metzenbaum.
Senator METZENBAUM. May I say, Mr. Secretary, that I think the
degree of response and the concern that has been expressed by
some of my colleagues down the table sort of testifies to the effec-
tiveness of your presentation.
Mr. Coleman, I have some concerns about possible inconsisten-
cies in statements Judge Bork may have made regarding his firing
of Archibald Cox. The recent letter from the American Bar Asso-
ciation regarding its recommendation of Judge Bork includes a
statement that one member of the committee is concerned that
there may have been "inconsistent and possibly misleading recol-
lections" by the nominee on this issue. It is important to try to get
the facts on this record as to what Judge Bork said to your commit-
tee when he was up for confirmation to the circuit court of appeals.
Were you responsible for preparing the report on Judge Bork in
regard to his 1982 nomination to the court of appeals?
Mr. COLEMAN. I have trouble answering that. I will say yes only
because I know some of Judge Bork's supporters have told you
that, have told people on the committee that.
Senator METZENBAUM. Did you have occasion to ask him in that
capacity about his role in the Saturday Night Massacre?
Mr. COLEMAN. Sir, at this point, I would not like to have to
answer further questions. In 1981, when I was on the committee,
everything done was done confidentially. When I talked to Judge
Bork, it was in confidence. The only people that I would show it to
would be the other people on the committee. It is my understand-
ing that all of the proceedings are confidential. I do not wish to
break that confidence.
Senator METZENBAUM. Let me say I understand that. I asked
Judge Bork the following question:
Judge Bork, there seems to be some question as to what you did tell Mr. Coleman
at the ABA investigation in 1982. My staff has discussed with the ABA the question
of obtaining information about your statements to the ABA regarding your role in
the Watergate matter. The ABA has said it is willing to furnish that information if
you will agree to waive any objection. Would you be willing to waive any objection
to the ABA providing that?
Judge BORK. YOU mean the notes from Mr. Coleman?
Senator METZENBAUM. The entire matter of your inquiry with the ABA at that
point concerning this matter.
Judge BORK. Certainly. In fact, I thought I had. Somebody from the Department
of Justice or the White House asked me if I would be willing to waive a week ago,
and I said yes.
So I am not asking you to do something that Judge Bork has any
opposition to. I think one issue that concerns Judge Bork's state-
967
ments about the decision to appoint a new special prosecutor after
Mr. Cox was fired. Last week, I asked Judge Bork the following:
You had no guarantee from President Nixon at the time he fired Mr. Cox that
there would even be another special prosecutor. Is it not a fact that the decision to
appoint a new special prosecutor was not made until several days later after the
President had provoked a firestorm of controversy around the country?
Judge Bork answered that question by saying,
That is right. Initially, we intended to leave the Special Prosecution Force intact,
but not to appoint a new special prosecutor, and they would go under Mr. Ruth and
Mr. Lacovara as before. But we did not initially contemplate a new special prosecu-
tor until we saw that it was necessary because the American people would not be
mollified without one.
In other words, Judge Bork is saying that, at the time Mr. Cox
was fired, the assumption was that there would not be a new spe-
cial prosecutor. However, it has been publicly reported that Judge
Bork told you in 1982 that after Mr. Cox was fired he "immediately
began searching for another special prosecutor."
That statement creates the impression that when Judge Bork
fired Cox the assumption was that the investigation would go for-
ward under another special prosecutor. So it is important, Mr. Sec-
retary, to know whether Judge Bork made any statements in 1982
to you regarding when the decision was made to appoint a new spe-
cial prosecutor. It goes directly to the question of credibility.
Therefore, in view of Judge Bork's willingness to waive any con-
fidentiality, it is important, I think, that this committee have
access to those notes.
Mr. COLEMAN. Well, sir, as I indicated to you, as a member of
that committee I thought that everything I did was confidential. I
know that a copy of that report and the copy of the memorandum
of the interviews with Judge Bork and other people are in the files
of the ABA. I would hope that you would get them from that
source.
The CHAIRMAN. The Chair will sustain your not having to
answer that question if you choose not to. The fact of the matter is
that it was whether the ABA would release it. I have spoken to
Judge Tyler. He is prepared, as I understand him today, to release
that.
I respect your desire to maintain the confidentiality. You have
given that report, as I understand it, Mr. Secretary to the ABA
Committee. They have that, and it is up to them. Judge Bork has
authorized them to release it if they so choose. I expect that to
happen this afternoon. I will sustain your position of not wishing to
disclose that yourself.
Senator METZENBAUM. Mr. Chairman, I just want to make clear
one point.
Does the ABA have the notes or do you have them, Mr. Coleman,
or both?
Mr. COLEMAN. The ABA . . . well, I
Senator METZENBAUM. Because the Chairman
Mr. COLEMAN. Senator Specter, I wish you were here, you
knowin our days of discoveryI do not know how I handle that
one? If I claim I have a privilege, how much can I describe and not
be waiving my privilege?
968
Senator SPECTER. Mr. Secretary, you do not need any help from
me.
The CHAIRMAN. In other words, you are on your own. [Laughter.]
Senator METZENBAUM. What concerns me is that if you have the
notes and they do not, then I think it is important that we have
the notes because we have other witnesses who will be coming for-
ward to testify later on.
Mr. COLEMAN. Well, I will put it this way: I do not think that I
have anything that they do not have. Put it that way.
Senator METZENBAUM. All right. Fine.
The CHAIRMAN. I think your time is up, Senator.
Senator METZENBAUM. In view of the last answer, I have no fur-
ther questions. Thank you.
The CHAIRMAN. The Senator from Wyoming.
Senator SIMPSON. Thank you, Mr. Chairman. It is good to see you
this morning, Bill Coleman.
Mr. COLEMAN. Good to see you, sir.
Senator SIMPSON. And I have come to know you, and have the
deepest respect for you, and that is more than passing, that is
public, and I have said that many times before.
I remember your extraordinary help to me in various legislative
issues I have dealt with, and your support, and I thank you for
that.
Mr. COLEMAN. I have had the opportunity of knowing you, sir.
You have a lot of style and a lot of class.
Senator SIMPSON. I have nothing further to say. [Laughter.]
Mr. COLEMAN. I see you have good judgment, too.
Senator SIMPSON. Bill, usually they are trying to bail me out, you
know, most of them, saying, stop him.
You are an exceedingly reasonable man, and every bit of your
writing, and your past public service, and your practice of law dis-
closes that.
I been trying, desperatelyhonestlyto read this remarkable
statement which was just given to me, and Mr. Chairman, this is
not a whining complaint, but, gosh, you know, it would be so help-
ful to have this and be able to go over it before we are handed it as
we come into this place.
It is 51 pages, it is a remarkable thing, with three appendices,
and I think we are all ill-served by not having that in front of us,
so that our staff could have looked at it yesterday, and I could have
looked at it. I am only down to page 35 now. And it is unfortunate
because it is very lucid, and the Secretary is saying some things.
Is there any way to assure that we could have these things in
our hands at an earlier period so that we can review these things,
so that we can fully participate?
The CHAIRMAN. I think that would be useful. Unfortunately, we
do not have any of the statements, so far, of any of the witnesses
for, and very few of the statements of those who are testifying
against, but we will try very hard, Senator, to make them available
as quickly as we can get them.
Mr. COLEMAN. Senator, I apologize. I tried my best to get it to |
you. I was not called, that I was going to have to testify today,,
until 2:00 or 3:00 o'clock on Friday. I was at the Greenbriar. I got
back the first thing Sunday morning. I had left the office at a quar-
969
ter of one this morning, and I think it was delivered over to the
Senate shortly thereafter. I apologize.
Senator SIMPSON. NO. I thank you so much, but it is pungent
stuff, and I wish I could have had a chance to read it all, and I did
not.
I know you have made a comment before I came in, and I know
and have reviewed that. I do not put you in the category in any
wayand this is a judgment on my partbut you are not even
close to the people I am talking about, when I am talking about
people who have raised the specter of emotion, fear, guilt, and
racism, when it comes to this nominee, and that is what we have
had.
We have had a pretty good load of that because we have used
charged words. We have really almost dog-eared this Indiana Law
Review article of 1971, which, if anyone had read the first two
paragraphs, would know that it was called ranging shots, theo-
riesin fact it ended and said it was tentative, and it was using
words like "speculative," "informal," "not well-researched"just
arranging series of thoughts about a neutral system of looking at
the U.S. Constitution. We have nearly worn out that document.
That was written in 1971.
We have nearly worn out the document of 1963, when he wrote
about affirmative actionnot affirmative action, but discrimina-
tion in public places. The same things that Sparkman was talking
about, and Bill Fulbright was talking about, and three Members of
the present sitting United States Senate were talking about.
Those are the things that I am saying.
Mr. COLEMAN. Well, sir, the difference is that those gentlemen
were running for public office, and I think the most dramatic ex-
ample is Senator Thurmond.
I mean, in 1948, his political judgment was that that was the way
to go. He certainly has developed and changed as much as any
human being I know. In fact in his last election I went down to
South Carolina and campaigned for him.
That is the American political scene. I think you weigh that
person differently from a scholar who is not under that type of
pressure, and I also think that Senator Strom Thurmond bears
today the record of probably seeing that his President appointed
the first black judge to sit in the south.
But that is the political process and that is what we really want.
But when I am talking about a judge, or I am talking about a
scholar at the Yale Law School, I just think that you measure his
performance over the years by a different standard.
Senator SIMPSON. Mr. Chairman, there is an extraordinary state-
ment. A politician is allowed to change and grow, but a judge ap-
parently is not, nor a professor.
Mr. COLEMAN. Oh, no.
Senator SIMPSON. YOU cannot be saying that.
Mr. COLEMAN. I want him to change and grow, but I do not want
him, in 1971, to do the Indiana Law Review Article, to take privacy
and liberty out of the Constitution, and then, as late as 1982, 1987,
say the same thing.
I would just like you to look at my footnote two on page 46,
where he is saying the same thing.
970
Senator SIMPSON. Well, Mr. Chairman, Justice Hugo Black, who
was a remarkable civil libertarian, did not agree with the Griswold
case, and said very clearlyhe said, "The Court talks about a con-
stitutional right of privacy as though therethis is Justice Black
talking, not Judge Bork as though there is some constitutional pro-
vision, or provisions, forbidding any law ever to be passed which
might abridge the privacy of individuals, but there is not," is what
he said. That was Judge Black.
"Nor is there anything in the history of the ninth amendment
that offers any support for such a shocking doctrine."
Justice Black said there was no right of privacy in the Constitu-
tion and cited that, and that is his language in the Griswold case.
Mr. COLEMAN. Well, sir, I knew that you would raise that, and if
you look at pages 12 and 13 of my testimony, I cover that, and I
thoughtyou know, I know we Philadelphia lawyers think that we
are going to flatter each otherbut I felt that when Senator Spec-
ter got through with trying to say, if one felt that way how could
one agree with Boiling v. Sharpe, that he was probably right.
And can I tell you the reason why Justice Black reached the con-
clusion he did, sir?
Senator SIMPSON. If I had more time, I would love it, but
Mr. COLEMAN. Well, I think it is important because you raised
the issue.
The CHAIRMAN. YOU can have more time.
Senator SIMPSON. Thank you. Go ahead. I would like to hear
that, Bill, please.
Mr. COLEMAN. The Justice felt that he wanted to try to place a
little more restriction on what a Justice could do. But when he in-
corporated in the 14th amendment the first eight amendments
through the word "liberty," he had given away two-thirds of the
ball game by conceding that liberty means more than mere free-
dom from restraint, because the first eight amendments contain
many other substantive rights. In order to restrict giving additional
substantive content to the word liberty, he then insisted that that
word means only the first eight amendments.
At that time there were two other Justices who said, well, yes, it
means all that, plus it means more. The Justices that we most
often think of as advocates of judicial restraintJustice Frankfurt-
er and Justice Harlansaid, wait a minute, the meaning of liberty
is not limited to the first eight amendments as incorporated by ref-
erence. In their view, we need to understand the real fundamental
feelings in the Constitution for people, and therefore, the incorpo-
ration doctrine does not solve the problem.
That Justice Black's problem isand he had difficulty with some
of the casesthat if you say that the Bill of Rights represents both
the floor and the ceiling, then you are in real trouble because by
doing that Justice Black cannot say that the State statute, which
prohibits the use of contraceptives is unconstitutional. Whereas
Justice Harlan, Justice Frankfurter, and those that really under-
stood this had or would have had no problem in holding such a
statute unconstitutional.
Senator SIMPSON. Yes. You might have been interested, and
maybe you heard some of the testimony about how that case came
about.
971
No charge had ever been brought under it. It had been on the
books for 80 years, a totally absurd piece of legislation. In fact it
was referred to, by Judge Bork, as being "nutty." Others referred
to it with greater clarity.
And that was the way that case came up, and finally, the law
professors
Mr. COLEMAN. I beg you if you go back and
Senator SIMPSON. May I
Mr. COLEMAN. If you go back and figure out how the Ships
Money case came up, which only involved sixpence, I bet you you
will find that thereyou knowit did not have to happen. I mean,
that is how great law is often made. Take Shuffling Sam, for exam-
ple, in Thompson v. Louisville.
You know, there are some great cases that came up in a way
where you say, indeed, lawyers ought to have something more im-
portant to do, but that is the way the law grows.
Senator SIMPSON. Well, law professors will never be busy again
after these hearings, I can tell you that. Any law professor that is
going to take off and fly, and flap his wings, after this hearing, is
really going to figure out that that ain't the way to go. That is
what is going to be a chilling effect on the profession of professors.
That is just my own personal
Mr. COLEMAN. I heard you make that point. That does give me
some concern, sir.
Senator SIMPSON. Well, it should give every American concern.
Mr. COLEMAN. I would love to walk over some time and have
lunch with you. I think I can talk that one out with you. I do not
think you are right.
Senator SIMPSON. Good. I will be ready. I will buy.
But we have been here now 5 days going through Judge Bork's
background, and it has been very fair, and much better, in many
ways, than previous hearings, because we have not really delved
into personal things, and so on, as we did in some.
But we have spent an inordinate amount of time on writings,
and things done before he assumed the federal circuit court, at
which timeand you haveI believe I do not paraphraseI be-
lieve you said he had done "a good job" as a Federal District Judge
of the United States of America.
Mr. COLEMAN. Court of appeals.
Senator SIMPSON. Court of appeals. He had been "good," and that
many of the thingsif I say this correctlyhave been in line with
your views as to his time on the circuit court of appeals.
I believe that is what you said moments ago.
Mr. COLEMAN. I do not think I said that, sir. I said that he was
dealing with interpreting statutes written by this Congress and he
applied the statutes as they were written, and that he had not had
the opportunity to deal with the great public cases, but he had
written about them even after he was on the bench, and the views
expressed in those writings seemed to be very similar to the views
expressed before he went on the bench.
Senator SIMPSON. But what I was sayingand will come to a con-
clusion and submit a good deal of my questions in writingthat
here we have been presented with a great many charged words in
972
connection with this man, and this is the troublesome part to me.
Not from you.
Mr. COLEMAN. Oh.
Senator SIMPSON. We have talked about him being one who
favors sterilization of his fellow man, and woman, which is abso-
lutely absurd.
We have equated the word "poll tax" with him as a totally racist
thing, and the United States Supreme Court never used the term
in any way in that poll tax case. There was nothing in it, from top
to bottom, end to end, that had a thing to do with racism. Not one
thing in that case.
Mr. COLEMAN. AS I read the case, it turns on poverty. But I also
think it is very important in this country to say that a State stat-
ute which adversely affects somebody merely because he is poor,
should be subject to heightened scrutiny to see whether you ought
to have that type of statute.
Senator SIMPSON. The United States Supreme Court stuck with
him on the issue of it not being a racist case. And then we have
heard a great deal
Mr. COLEMAN. But they decided the case against his views.
Senator SIMPSON. What is that?
Mr. COLEMAN. The case was decided 7 to 2 against his position on
the grounds of poverty.
Senator SIMPSON. The case had nothing to do with racism, that is
what I said, and that is what I would insist that I have said, and
leave it at that. I do not know what other things it had to do
with
Mr. COLEMAN. That is the problem, that is what Judge
Senator SIMPSON [continuing]. But it did not have anything to do
with racism.
Mr. COLEMAN. That is what Judge Bork did. He
Senator SIMPSON. But that is what it has been portrayed, Bill. It
is portrayed as a racist case, and it is not.
Now may I go forward, please?
Mr. COLEMAN. But sir, Iyou certainly may, because you have
the power.
Senator SIMPSON. Well, I do not want to use power. I just want
to, you know, get a response that I
Mr. COLEMAN. See, people have criticized those that come up and
oppose Judge Bork as being irresponsible. All I really want to do is
demonstrate to the country that even in this democracy you can
come up with a poll tax.
The great thing about the poll tax case is that the Court said,
leaving aside the race issueand actually, if you go back and look
at the legislative history, you will find in the debates in Virginia,
evidence that legislators said let's draw a statute in such a way
that the court will not say it is unconstitutional, but let's make
sure we get it so that very few blacks can votebut the Court went
on a different standard, namely, that poverty ought not to be a
basis for denying the right to vote, and that makes it a great case.
Now, if you read Judge Bork's statement, that the 14th amend-
ment is limited to race, he takes that issue out of the ball game. I
think that as Mr. Lincoln said, that you have to love the poor
973
people, there are so many of them, and I think that is a very im-
portant part of American life.
Senator SIMPSON. Mr. Chairman, I guess I will just conclude, that
in any event, we have heard a lot about these charged words. The
firing of Archibald Cox. Archibald Cox could be here to testify, if
he wished.
I do not know the reasons he did not choose to do so. He was a
professor of mine in labor law in my earlier life, a very steady and
thoughtful man. He is not here.
We have heard a lot about women's rights, and this man being
prejudiced against women's rights. These are things that I have
been listening to for 5 days, that he was a person who was discrimi-
natory and engaged in
Mr. COLEMAN. No, you have not heard that from
Senator SIMPSON. I know but
Mr. COLEMAN. Sir, see, the worst thing in the world for a lawyer
to say is: judge, you missed the point. That is not the point we are
making.
What we are saying is that everybody has to recognize that there
is still discrimination against women. Some of it will be taken care
of by the political process. Some of it will be taken care of because
private people will feel more responsible. But in this country, we
know that the only way some of it is resolved is in constitutional
cases, and that when a mannot being prejudiceddoes not recog-
nize that the 14th amendment gives the court the power to do that,
then you have adversely affected the rights of women, not because
you are prejudiced but just because you do not quite understand
the Constitution.
Senator SIMPSON. Well, I guess when I have heard five days of
testimony from the man himself, a most thoughtful and articulate
person, with all of the things that go to leading to the type of
person you would want on the Supreme Court, I personallyand
this is my own viewsee no difference between a person that we
are going to put on the highest court, appellate court of the land,
and the lower courts, the Federal Court of Appeals of the District
of Columbia or the United States Supreme Court. That does not
make a whit of difference to this person, and I say that as my own
personal opinion.
I will leave it at that. In fact I will just stay so close to my own
personal opinions, that there is no way they can leap on my head.
I am just saying that I have watched and listened, and I have
heard these charged words, and about illegitimate children and
antitrust, and anti-consumers, and paying more for your groceries
and your toys, and all of that business. I have heard all that.
And use of the Dred Scott decision which, in my mind, is offen-
sive, when we are toldand it was told here several days ago
someone read from that and said, "Judge Bork, that sounds like
you."
Now how would you like to try that one on? That is the kind of
stuff I have been here listening to for 5 days. That is very ponder-
ous and tedious.
The issue, to me, and what I am going to just share with youI
know you are aware because I know you, and I know what a
lawyer you arethat as Solicitor General of the United States, this
86-974 0 - 8 9 - 3 3
974
man filed 19 amicus briefs addressing substantive aspects of federal
civil rights law, and seventeen of those briefs urged the Supreme
Court to boldly construe the relevant law and rule in favor of the
minority, or female plaintiffs.
That is what happened with this man, and, on more than several
occasions, Justice Powell voted against him. In fact it was extraor-
dinary, as we talk about Powell being the centrist and the swing
vote, to see how many times that Bork was sometimes leading the
way.
And this is no reflection on Justice Powell. He is a superb man.
But these are the realities. And I want to submit into the record
this entire case law, where this man was involved, either as Solici-
tor General, or the judge of the court, where he shows not one
shred of discriminatory activity, or not one single intent, or at-
tempt to denigrate or deny, or press down minorities, or lesser
people in the United States. I want that in the record, and I have
no further questions.
The CHAIRMAN. Without objection, it will be placed in the record.
[Information follows:]
975
1. Runyon v. McC_r_ary_, 427 U.S. 160 (1976), which affirmed that

Section 1981 applied to racially discriminatory private contracts.
(Amic_u_s )
2. Lâu v. N^chcDjjs, 414 U.S. 563 (1974), which ruled that Title VI
and possibly the 14th Amendment reached actions discriminatory in
effect, even where the actions were not intentionally discriminatory.
IAmicus)
3. i_tz_patri_ck v. Bitzer, 4 27 U.S. 445 (1975). The United States,
as amicus, successfully argued that the 14th Amendment effected a
basic change in the constitutional relationship between state and
national governments and that Section 5 of that Amendment gives
Congress compl_e.te_ power to remedy violations of that Amendment,
including the power to abrogate sovereign immunity.
(Araic_us )
A
4. i.EL)ia_n4eJl v. Gardner-Denver Co. , 415 U.S. 36 (1974), which held
that an employee may sue in court under Title VII employment
discrimination statute even though the Union had lost on the issue
of discrimination in arbitration.
(Amicus)
976
5
- Albemarle Paper Co. v.'Moodj, 422 U.S. 405 (1975), which made
it significantly easier for plaintiffs to prove employment discrim-
ination claims on the basis of a discriminatory "effects" test.
(Amic_us )
6. Franks v. Bowman Transportation Co., 424 U.S. 747 (1976).
As in Albemarle, Bork's amicus brief successfully urged the Supreme
t ions.
(Amicus)
7
JBfJLF v - United States, 425 U.S. 130 (1976), Solicitor General
minority voting strength, the plan nonetheless had a discriminatory
"effect" because other proposed plans would have done more to
increase the influence of minority voters. The Supreme Court (per
Justice Stewart) (5-3) rejected Bork's expansive interpretation of
the Voting Rights Act. Instead, the Court held that the Act was
satisfied so long as the new electoral scheme did not further
dilute the minority vote.
- 2 -
977
8
- Washington v. Davis, 42'6 U.S. 229 (1976), Bork unsuccessfully
argued that employment tests having a discriminatory "effect"
violated Title VII.
9
' Teamsters v. United States, 431 U.S. 324 (1977), the Supreme
systems violated Title VII if they perpetuated the effects of prior
discrimination.
10. Pasadena Board of Education v. Spangler, 427 U.S. 424 (1976),
Bork argued that a school district which had already faithfully
implemented a wide-spread busing plan could be required by a court
to achieve a more perfect racial balance. The court disagreed,
holding that the lower court's action directly contradicted Supreme
Court precedent foreclosing the use of busing to achieve perfect
racial balance.
11. United Jewish Organizations v. Carey, 430 U.S. 144 (1977),
strength.
12. VijLgjLD-ia. v. United States, 420 U.S. 90l (1975). In this case
Bork successfully urged the Court to hold that the State of Virginia
was not entitled to be relieved of the special burdens imposed by
Section 5 of the Voting Rights Act.
- 3 -
978
1. General Electric Co. v. Gilbert, 429 U.S. 125 (1976). Bork's
amlcu3 brief argued that employment discrimination based on pregnancy
violated Title VII of the Civil Rights Act of 1964. Six Justices
rejected this argument. In 1978, Congress adopted Bork's position
when it amended Title VII to prohibit discrimination on the basis
of pregnancy.
(Amicus)
2. Vorchheimer v. Philadelphia, 430 U.S. 703 (1977), where the
offerings, and said the Court should not reach the question whether
such schools are unconstitutional even if educational offerings
were equivalent. The Court was equally divided and issued no
opinion.
(Amicus)
3. Corning Glass v. Brennan, 417 U.S. 188 (1974), a landmark "Equal

Pay Act" case which ruled that men could not be paid more than
women for similar jobs on different shifts.
979
Senator Simpson 9/21/87
Questions Submitted to the Record
Civil Rights Questions
1. Are you aware that Judge Bork, as Solicitor General,
filed 19 amicus briefs addressing substantive aspects of
federal civil rights law and that 17 of these briefs urged
the Supreme Court to broadly construe the relevant law and
rule in favor of the minority or female plaintiffs?
2. Are you aware that Solicitor General Bork argued for more
extensive interpretation of civil rights laws than ultimately
adopted by the Court in several landmark civil rights
decisions? For example, are you aware that the Supreme Court
rejected Bork's arguments in the following cases:
A. The Supreme Court rejected Bork's argument that
discrimination on the basis of pregnancy violated Title
VII. (General Electric Company v. Gilbert 1976 --
Powell voting against Bork.)
B. The Court rejected Bork's argument that a New Orleans
reapportionment plan violated the Voting Rights Act
because it dxluted black voting strength. (1976 Powell
voting against Bork.)
C. The Court voted against Bork's position that all
employment tests with discriminatory "effect" violated
Title VII. (Washington V. Davis 1976 -- Powell with the
majority against Bork.)
D. The Court voted against Bork's position that wholly

race neutral seniority systems perpetuating the effects
of prior discrimination violate Title VII. (Teamsters v.
U.S. 1977 Powell siding with the majority, against
Bork.)
980
E. The Court ruled against Bork's position that school
districts that have faithfully implemented a wide-spread
bussing plan can still be ordered to achieve a more
perfect racial balance. (Pasadena Board of Education v.
Spangler 1976 -- Powell siding with majority against
Bork.)
3. Are you aware that as an Appellate judge, Judge Bork has
never rendered or joined a decision less sympathetic to a
minority or females than that made by either the Supreme
Court or Justice Powell? Indeed, in all but three of his
appellate opinions which addresses substantive aspects of the
civil rights law, Bork broadly construed the relevant law and
ruled in favor of the minority or female plaintiffs.
4. Are you aware that as an Appellate judge, Judge Bork
authored or joined several opinion broadly interpreting
Titles VII of the equal Pay Act including, the cases of
Laffey v. The Northwest Airlines and Palmer v. Shultz? Are
you aware of Judge Bork's record as Solicitor General in
gender discrimination cases?
Bork represented the United States in several landmark
gender discrimination cases, including the General Electric
Company v. Gilbert case and Corning Glass v. Brennan, arguing
in that case that men could not be paid more than women for
similar jobs on different shifts. And then there is
Vorchheimer v. Philadelphia where Solicitor General Bork
argued that single sex schools are unconstitutional and
illegal if not equivalent in educational offerings.
5. Are you familiar with the case of Pasadena Board of
Education v. Spangler 427 U.S. 424 (1976)?

981
6. Are you aware of the case of Milliken v. Bradley 428 U.S.
717 (1974)?
7. Are you familiar with Judge Bork's vote, joining the
panel decision, in Palmer v. Shultz, a District of Columbia
Circuit Court decision of 1987?
8. I would like to describe for you several cases which
Solicitor General Bork argued which called for an expansive
interpretation of Title VII. These cases include Washington
v. Davis (unsuccessfully arguing that employment tests have
a discriminatory "effect" which violated Title VII),
Teamsters v. United States, (unsuccessfully arguing that
wholly race-neutral seniority systems perpetuating effects of
a prior discrimination violated Title VII). Abermarle Paper
Company v. Moody (successfully arguing for use of statistical
evidence and discriminatory "effects" tests to prove Title
VII violations) and Alexander v. Gardner-Denver Co.
(successfully arguing that employees may bring Title VII
suits even if the union loses its discrimination claim in
arbitration).
982
1
SIGNIFICANT PRO-MINORITY AtfD
A(fp PRO-WOMEJ^
PRO-W APPELLATE COURT
DECISIONS
1. Ososky v. Wick, 704 F.2d 1264 (1983) (Foreign Service subject to
Equal Pay Act) >^fb-Female).
2. Palmer v. Schultz, 815 F.2d 84 (1987) ( inference^, of intentional
discrimination can be made solelyVon statistical evidence) (Pro-
Female) .
3. Laffey v. Northwest Airlines, 469 F.2d 1181 (1985) (female
stewardesses may not be paid less than male pursers for nominally
different jobs; Pay Act back pay awards determined by
calculating total ]ob expei^^nce) (J^ro-Female)
4. Nordell v. Heckler, 749 F.2d 1264 (1984) (Title VII's statutory
limitations should be liberally construed).
,5. Emory v. Sec'y of the Navy, 819 F.2d 291 (1987) (military branches
subject to review of civil rights claims involving selection of
senior officers).
6. Jarrell v. U.S. Postal Service, 753 F.2d 1088 (1985) (allows
recognition of "equitable considerations" to excuse plaintiff's
noncompllance with statutory requirement that EEOC complaint must
be raised within 30 days of alleged discriminatory event).
7. County Council of Sumpter County, South Carolina v. United
States, 555 F. Supp. 694 (1983) (switch to "at-large" election
system required preclearance) .

983
The CHAIRMAN. JudgeSenator Heflin, a former judge, but Sen-
ator Heflin from Alabama.
Senator HEFLIN. Mr. Chairman, thank you.
You mentioned New York v. Sullivan in the Alabama Supreme
Court, and just to get the dates straight, I believe the United States
Supreme Court case of New York v. Sullivan was decided in 1964.
Mr. COLEMAN. Yes.
Senator HEFLIN. YOU mentioned I was on the supreme court. I
did not go on until
Mr. COLEMAN. NO, I did not say youNo, I checked that. I would
not have cited the case if you got reversed. No, I checked that. I
know you were not on the court. [Laughter.]
The CHAIRMAN. Will Senator Heflin please pull his microphone a
little bit closer, if he does not mind. Thank you.
Senator HEFLIN. Well, I am finally glad that you admitted you
were a Republican, about that campaigning down in South Caroli-
na.
You know, it has been an interesting thing to me, you know,
today, to see the Republicans versus Republicans. They tell me the
most acceptable form of cannibalism is Republican eating Republi-
can.
The CHAIRMAN. Mr. Secretary, you are free to respond in any
way you would like. [Laughter.]
Senator HEFLIN. Just a little levity now and then. [Laughter.]
You served as the Chairman of the American Bar Association's
Committee on the Federal Judiciary. Were you on that committee
and were you Chairman with Sandra Day O'Connor's
Mr. COLEMAN. I was not Chairman. I was a member, sir. But I
was a member when
Senator HEFLIN. What was your service on that committee?
Mr. COLEMAN. Each circuit has a member. I was the member for
3 years for the District of Columbia. Among those passed upon at
that time was Justice O'Connor for the Supreme Court of the
United States and also, incidentally, Judge Scalia for the D.C. Cir-
cuit.
Senator HEFLIN. All right. Now, as I understand it, the American
Bar has various standards or criteria that they look at, but they
say they do not get into ideology. Was that true when you served?
Has that been true relative to the Supreme Court?
Mr. COLEMAN. TO the best of our ability, we did not get into ide-
ology.
Senator HEFLIN. Well, in some of the questioning, it would
appear that some of your distinctions between your role reviewing
Judge Bork and your opinions now may deal with ideology. I am a
little bit confused, particularly by the section of the ABA instruc-
tions that are on Page 44 of your testimony, which Senator Metz-
enbaum read.
''The significance, range and complexity of the issues considered
by the Supreme Court, the importance of the underlying societal
problems, the need to mediate between tradition and change," and
then they go on to other things, such as "extraordinarily heavy
docket." But the words "The significance . . . of issues, the impor-
tance of the underlying societal problems and the need to mediate
984
between tradition and change," they come pretty close to saying
ideology.
Mr. COLEMAN. No, maybe I can give you such a situation.
If a scholar says that in the 14th amendment there is no protec-
tion of liberty or privacy, he is reading out a lot, and I would
almost treat him the way I would treat the same scholar who is
awfully good but writes scholarly pieces that the 14th amendment
has never been properly adopted. And on Page 8 of my testimony, I
give you the citations of scholars that say that.
In the same way I do not think it is ideological to consider as
relevant a nominee's view that' a whole line of cases which every
great Justice has pretty much accepted should be written out of
the 14th amendment. By the same token, when you have Section 5
of the 14th amendment and Section 2 of the 15th amendment, and
a nominee looks at those provisions in such a way that he or she
does not give the Congress the power that I think they have to
have, then I think that goes to the constitutional structure. And if
under those circumstances I say that I cannot take the risk, I do
not think you would accuse me of being simply ideological.
I just think that there are certain fundamental things that you
expect in anybody who sits on that Court.
Senator HEFLIN. YOU mentioned his opinions since he has been
on the court of appeals. You indicated no real civil rights opinion
dealing with the constitutional issue.
Senator HEFLIN. Yet you indicate that he has spoken otherwise
and has written otherwise in various articles and forums.
I do not know whether it is in here since we have not had an
opportunity to read it, but I wonder if you could prepare a list of
writings and speeches to direct us or our staff where we could look.
Mr. COLEMAN. Yes, sir. If you look at page 46, footnote 2,1 collect
those in that footnote.
Senator HEFLIN. These are the collection of those writings?
Mr. COLEMAN. Yes. I give every date after he was sworn in to be
on the court.
Senator HEFLIN. All right. Well, that might be, I think, of some
significance. It should be reviewed.
I may have some questions that I might submit in writing, but
that is all I have right now.
Senator KENNEDY. Senator Grassley.
Senator GRASSLEY. Thank you, Senator Kennedy.
Mr. Secretary, thank you very much for your testimony. I have
some questions that I would like to ask and ask you to comment in
regard to what difference these points make in your mind. If they
do not mean anything, then say so.
The bottom line that I am interested in is whether or not your
viewing and reviewing Judge Bork's appearance before us last
week and the extent to which you have changed your views as a
result of his being here. So I am going to start out with this point:
the NAACP Legal Defense Fund or its lawyers filed briefs in ten
cases during Mr. Bork's tenure as Solicitor General in which the
court made a substantive interpretation of Federal statutory or
constitutional law. Are you aware that in nine of these ten cases
the Legal Defense Fund sided with the Solicitor General?
985
Mr. COLEMAN. I am aware of that from the testimony, but I
would urge you to look at those cases. Once again, all you are dem-
onstrating is the Legal Defense Fund is responsible and they come
to the Court when they are usually right.
Secondly, my understanding is that in those cases they basically
dealt with statutes. They were not constitutional cases.
Senator GRASSLEY, Well, I start with the presumption that we
are dealing with an intellectually honest person, and if in his
public duties he could not in clear conscience take these positions,
that he would not; that he would resign. In fact, he made state-
ments to that effect last week.
Mr. COLEMAN. Sir, I have a footnote here where I cite his testi-
mony when he was being questioned during his conformation hear-
ings to be Solicitor General of the United States, and I would urge
you to reread that.
Senator GRASSLEY. What do you want me to look at? I will do
that after I am done questioning.
Mr. COLEMAN. It is the footnotes on page 39. He stated in connec-
tion with antitrust policy that he would put aside his personal
views. As a lawyer, you know, if you go and pull my recordand I
argued many casesI hope you do not get my client and me both
in the same room and say, "Bill, did you really agree 100 percent
with your client's view?" You know, when you function as a
lawyer, that is different from functioning as a judge.
Senator GRASSLEY. Again, let me state as fact, maybe there is no
point in asking for a response. But in seven of these cases where
the Solicitor General filed as friend-of-the-court, are you aware of
the factand I think maybe Senator Simpson touched on this and
is committing a whole series of these citations for the recordThat
Justice Powell opted for a narrower civil rights interpretation than
that urged by Solicitor General Bork.
But we have had stated for the last 2 months that because Judge
Bork would be replacing Justice PowellJustice Powell has been a
swing vote in several important cases before the Courtthat this is
tipping the balance on many issues; and from the standpoint of the
people making the charge, that that is a wrong course of action to
take. And from the standpoint of the civil rights community, I
think it should be noted that in several of the cases as Solicitor
General that Judge Bork presented his case and the government's
case before the courts, that he urged upon the court a broader in-
terpretation of civil rights laws than either Justice Powell or the
Supreme Court were willing to accept.
Are you aware of that? Or if you are aware of it and disagree
with it, tell us.
Mr. COLEMAN. I have heard that testimony, sir.
Senator GRASSLEY. Well, your response? Obviously, that has got
to detract from the criticism of Judge Bork over the last two
months.
Mr. COLEMAN. My response, before I could make a judgment, sir,
with all due respect, would be to go to get the cases and the brief to
see what the cases are about. Then I could respond to you.
As I said, after hearing so much said about the Runyon case, at
about 1:00 a.m. o'clock this morning I had somebody bring me that
volume. I was surprised to find out that Solicitor General Bork did
986
not argue that case; that the Government did not open its mouth
in that case. All they did was file an amicus brief.
Senator GRASSLEY. I want to read three sentencesone would be
on page 8, one would be on page 9, and the other one would be on
page 11of your testimony. Then I am going to lead back to the
original statement I made to you as I started my 10 minutes.
"And, since becoming a judge, he has not written any opinion
disavowing any of his publicly stated views."
At the bottom of page 9, "The committee should compare his
comments on Shelley with his comments on Katzenbach v.
Morgan." It is legitimate that you bring that up.
Also on page 11, "I also firmly believe that, having come this far
towards a free and open society, it is not in the public interest to
stop or turn back the constitutional development that slowly and
steadily is removing the vestiges of slavery, of 350 years of legally
enforced racial discrimination, and of centuries of irrational dis-
crimination against women."
Now, I am not here to find fault with any of those things you
have said, but we had Judge Bork before this committee for 30
hours last week. And it seems to me like he responded, on both
sides of the aisle, to much of the criticism that had been presented
over the last 2 months. And I have to ask you as a person who ob-
viously has strong feelings about this or you would not come before
this committee: If you observed Judge Bork for 30 hours or even for
a portion of that 30 hours, is there not anything in his testimony of
last weekhopefully there is a lot in his testimony of last week
that explains more adequately some of the positions that he took as
a professor, some of the statements he made that were very provoc-
ative, that would indicate to you that those views expressed 25
years ago, 14 years ago, may not be ruling with him and would not
be ruling with him when he is going to be sitting on the Supreme
Court?
Mr. COLEMAN. Sir, with all respect, I think you are missing the
point. The reason why I took you through the 14th amendment
cases is just to say that there were five or six instances, in each
one of which black Americans had won a tremendous victory. I
think everybody else here agrees with them. And each one of those,
Judge Bork saw fit to criticize the decision.
I do not stop there. When he was writing the criticism in 1971,
ridiculing or saying that there is no basis for Shelley v. Kraemer,
there were available at least three other cases decided after 1948
and before 1971 that I think a scholar should have discussed and
should have said, even if the Court were wrong on the State action
part, the decision was supported by the Act of 1866. The Supreme
Court in Jones v. Mayer, 3 years before his article, said you do not
need the 14th amendment, that the Act of 1866 is valid under the
13th amendment because all the Act of 1866 does is remove ves-
tiges of slavery. It seems to me that a scholar who in writing con-
demns one of the cases that black lawyers of that time thought of
as a great and important decision at least should have said: You
guys went on the wrong theory. Next time argue the Act of 1866.
Senator GRASSLEY. We were questioning him last week, Mr. Sec-
retary, on those very points that how, as a Supreme Court Justice,
they influence his thinking. And so I have to ask you if you re-
987
viewed that, if you viewed that last week, did that cause you to
change any of the views that you had about Judge Bork prior to his
appearance here last week?
Mr. COLEMAN. My views about Judge Bork are not personal.
They are based upon his writings, and there are two simple propo-
sitions.
Senator GRASSLEY. YOU have got to compare what he said last
week with what he has written; otherwise, you are taking the posi-
tion
Mr. COLEMAN. There are two simple propositions, and this is not
me speaking as a black person. This is me speaking as an Ameri-
can. The first is that one of the greatest heritage of an American is
the liberty and the privacy prescribed in our Constitution. Those
cases have nothing to do with blacks per se. They concern every
man and woman. This Judge reads them out of the Constitution.
He has done it in his speeches before. He has done it since on the
bench. He has not had opportunity to say, well, even though
wisdom seldom ever comes, there is no reason to reject it merely
because it comes late, and say in a decision: "I was wrong."
The other propositionand this really should affect youcon-
cerns Section 5 of the 14th amendment and Section 2 of the 15th
amendment, which give you the power to correct things that the
Court does not correct. I think that when someone's writings puts
that in jeopardy, you should look at that person carefully.
He may believe in every one of these positions, and I do not focus
on his personal viewsthat is not the problem. If you feel that,
then I have really failed you.
Senator GRASSLEY. I still would like to hear you say, Mr. Secre-
tary, whether or not anything Mr. Bork said last week in any way
causes you to change your views about him, what he said last week
compared to the writings that you are criticizing. Because this is
the record
Mr. COLEMAN. The only thing I could say
Senator GRASSLEY. It is the record of this hearing that I have got
to base my judgment on.
Mr. COLEMAN. I am under oath. What he said last week some-
what surprised me, because he kept on changing his positions and
that really bothered me.
Senator GRASSLEY. Well, now, he is not qualified to be on the
Court because he has changed his view?
Mr. COLEMAN. What?
Senator GRASSLEY. Because he changed his view.
Mr. COLEMAN. NO. NO, I thought that on certain of these issues,
Senator GRASSLEY. YOU look positively, then, at the fact that he
expressed some contrary views last week?
Mr. COLEMAN. Well, all I am saying is in all his writings he said
that those cases dealing with the right of privacy and liberty are
not in the Constitution, and he said that as late as 1985. There
were certain points in his testimony where he said, well, maybe
those rights can be found some place else. But to the best of my
knowledge, he never said where it was. With respect to the rights
protected under the Meyer decision. I believe he said that a State
statute that prohibited parents from sending their children to a re-
988
ligious school would be a violation of the first amendment or the
14th amendment, and therefore, the Catholic schools would not be
under a threat. But that apparent concession does not take care of
that military academy and those other schools that were also in
Meyer v. Nebraska, or the other privacy rights that have been
given protection in the line of cases following that decision.
The CHAIRMAN. Mr. Secretary, as you can see, there is great in-
terest in your testimony, and we are going to keep you longer be-
cause others want to question you, with your permission. But
would you like to take a 5-minute break?
We have two more questioners. That is supposedly 20 more min-
utes.
Mr. COLEMAN. I can go on.
The CHAIRMAN. I just want to make sure.
All right. I yield to your fellow former Philadelphia lawyer. I
guess he is still a Philadelphia lawyer and good lawyer, Senator
Specter.
Secretary Coleman, I join in welcoming you here. The committee,
I know, thanks to you for the tremendous effort that you have put
into the very scholarly presentation which you have made both in
writing and orally today.
I think it should be put on the record the tremendous public
service you have given in the past as Secretary of Transportation,
Assistant Counsel to the Warren Commission, where you and I
worked for many years together, and your work on the Bob Jones
case and many, many other matters. And, of course, when you talk
about the Girard College case or Judge Raymond Pace Alexander,
and the matters which have occurred in Philadelphia, Pennsylva-
nia, they have special meaning for me.
I would like to discuss with you two issues in the few minutes
which have been allotted to me todaythe first amendment issue
on clear and present danger and issue on equal protection of the
law, which I think are central to this matter.
On the issue of clear and present danger test, Judge Bork said
and I think this is really a critical aspectthat although he dis-
agrees philosophically with the case, that he would apply the set-
tled law if confirmed as a Supreme Court Justice. I think there is a
generalized agreement as to his integrity, and he has promised to
uphold the settled law of Brandenburg and, considering the various
factual situations which come before the courtand this is really
an ultimate question which I have to decide as a Senator, this
panel has to decidebut I would be interested in your views on the
central question as to whether it is realistic for a Justice of the Su-
preme Court to apply settled law, which he may disagree with
philosophically?
Mr. COLEMAN. Well, I think that sometimes the justices do and
sometimes they do not. And what I have attempted to do was to
collect in Appendix C some of the cases on that, and at the end of
the Appendix I have collected statements made by Judge Bork. The
latest one was made on January 31, 1987, in which he said "Cer-
tainly, at least I would think an originalist judge would have no
problem whatever in overruling a non-originalist precedent because
989
that precedent by the very basis of his judicial philosophy has no
legitimacy. It comes from nothing that the framers intended."
Senator SPECTER. Mr. Secretary, there is no question that he has
said that, and we questioned him on that closely. But there is dis-
tinction three ways on three issues.
One is as to clear and present danger test, he flatly made a com-
mitment to accept settled law. On the privacy cases he has not
made that commitment. He has talked about various consider-
ations of reliance and stare decisis, but he has made no commit-
ment on privacy and that leads to the abortion issue.
On equal protection he has made a commitment, but it has been
a different standard.
Mr. COLEMAN. Sure.
Senator SPECTER. But you testified, and I think accurately so,
that as Solicitor General he took positions that he disagreed with
intellectually. You and I know that as practicing lawyers we do not
have to agree intellectually with the position to defend someone.
When I was a Public Defender for a time, I defended people that
I did not agree with their position, but that is a lawyer's job. As
District Attorney I had greater opportunity to dismiss the case if I
disagreed with that.
But the central issue as to whether a man of goodwill and integ-
rity, whether he can apply a principle of law that he philosophical-
ly disagrees with is one which I am pondering. And that is why I
asked you the question, as to whether you had any special
Mr. COLEMAN. I do not. All I can ask you is to read Appendix C,
and I do not think that something other
Senator SPECTER. I have already read Appendix C. It is a very
erudite appendix. I have read your paper, and it is really quite ex-
cellent.
Mr. COLEMAN. I am the unfortunate lawyer who argued the
Garcia case, and I was up there twice. And I finally told the Jus-
tices, "The only way you can rule against my clients in this case,
sir, is you have got to reverse yourself, and they did.
So, you know, you cannot say that I can rely on people who say
they will or will not adhere to precedents, because in Garcia Mr.
Justice Blackmun, who is a wonderful gentleman, reversed himself.
And in that case Justice O'Connor and Chief Justice Rehnquist
each stated in dissent that that decision is just a temporary ruling,
and that the right time will come, and the issue will come back
before the court. I have two kids who are lawyers, and both of
them are saying "I hope I get back there; I can reargue that case
again and win one you could not".
Senator SPECTER. Mr. Secretary, your last point illustrates a
number of principles. One of them is the complexity of cases before
the Supreme Court. Let me discuss with you for a few moments the
issue of equal protection of the law because you dealt with this in
your statement.
Judge Bork has said that he would apply equal protection of the
law more broadly than he had in his writings, and I have said that
I accept that.
And then the question is: When you apply equal protection to
women and to illegitimates and to the poor and to aliens, what the
standard is?
990
And you have raised a question about heightened scrutiny versus
a reasonable standard. And what Judge Bork did in his testimony
here was to adopt the standard of Justice Stevens. Justice Stevens
has written two cases on equal protection of the law. He has writ-
ten a concurring opinion in Craig v. Boren. He has written a con-
curring opinion in City of Cleborne v. Cleborne Living Center.
The issue which is raised for me is whether Judge Bork's stand-
ard of equal protection is sufficient. Now when Justice Stevens
wrote City of Cleborne and articulated the reasonable basis stand-
ard, he did not have any motivation to get confirmed. He said flat
out that he disagreed with the three tiers of strict scrutiny, at one
extreme, and rational basis, at the other.
And then he articulates a standard of rationality, which Judge
Bork has adopted. And the purpose of my question here today to
you is to get some help on my own thinking on whether Judge
Bork's standard is sufficient.
In the Craig v. Boren case, when this same question came up,
there were seven opinions of the court on what equal protection
meant. Justice Brennan filed the opinion of the court. Justice
Powell filed a concurring opinion. Justice Stevens filed a concur-
ring opinion. Justice Stewart filed an opinion concurring in the
judgment. Justice Blackmun filed an opinion concurring in part.
Chief Justice Burger dissented and filed an opinion, and Justice
Rehnquist dissented and filed an opinion.
Now people are very anxious to know where some of us on this
Judiciary Committee stand on the questions involved in this case.
And equal protection is a big one. There are two big issuesand
that is under speechand liberty, and it is equal protection. And it
does not exactly lend itself to a thirty-second sound bite as to how
a Senator is going to decide the question of Judge Bork's competen-
cy or adequacy for the Supreme Court when he talks about a differ-
ent standard and nine Justices and you have seven opinions.
Now my question for you is: Are you sure that Judge Bork's ac-
ceptance of the Stevens' standard on reasonable basis is inadequate
to do justice under the equal protection clause?
Mr. COLEMAN. Sir, that I do not know. But if I had the problem, I
would first start with Judge Bork's speech in August 1985, in
which he said and I quote: "In the 14th amendment case, the histo-
ry of that is somewhat confusing. We know race was at the core of
it. I would think pretty much race, ethnicity is pretty much what
the 14th amendment is about; because if it is about more than that,
it is about a judge making up more that it is about. And I do not
think he should. I am reading from pages 23 and 24 of my written
testimony.
Therefore, I start with the fact that, if Thy would be true to
Thine own self, that whenever Judge Bork approached these issues
he certainly would not have the flexibility in his own mind that
Mr. Justice Powell, Mr. Justice Brennan or Justice O'Connor
would. I would urge you to reread her opinion in the case that
came up from Mississippi involving the school for male and female
nurses, I think, and you will see how she feels about it.
And I just think that to tell the Bar that the standard is reason-
ableness leaves us I think with a major problem. I feel from my
own experience that it is essential that a judge, when he is passing
991
upon a discriminatory law involving women, apply a heightened
scrutiny standard.
Now if what Judge Bork is saying is that he just wants to say the
same thing but in a different way, so that when he says reasonable-
ness, what he means by that is precisely what is currently meant
by "heightened scrutiny", then what he is doing is confusing the
Bar, although we lawyers tend to make a lot of money when the
court confuses us. If that is what he is saying, than it seems to me
perhaps you could do it.
But I think that is something that is a judgment that you have
to make and I have every confidence that you will make the right
one.
Senator HEFLIN. Mr. Chairman, could I interrupt? Would you tell
us what page you were quoting from from your testimony?
Mr. COLEMAN. The page I was quoting from was on page 23, sir.
If you go to pages 23-25, I indicate the statements that he has
made. As I also indicate in page 23, "This salutary application" of
"this is me referring to the equal protection cases involving
women, aliens and legitimate children"of the grand principle of
anti-discrimination to the complex realities of American life is dis-
missed by Judge Bork as merely as a result of fads in sentimental-
ity".
I just do not think it is conceivable for me to read cases involving
women as being merely "fads in sentimentality." We have come a
long way, and particularly when I read a case from the Supreme
Court in 1881 where a woman cannot even practice law. I just
think that you have got to recognize that these statements and po-
sitions have to be taken into consideration.
Senator SPECTER. Mr. Secretary, when you refer to Judge Bork's
speech about equal protection applying only to race and ethnic
issues, I read in the section of an earlier writing where he said that
equal protection applied only to race
Mr. COLEMAN. Yes.
Senator SPECTER [continuing]. And asked him about the broad in-
terpretation as to women and as to illegitimates and as to poor and
as to aliens, and he said that he accepted the broader interpreta-
tion, and said that what he had written as a professor, that that
was one view, but he is prepared to accept the interpretation of the
court on the broadened standards, not only to blacks but to women
and to the poor, et cetera.
Now I may be wrong, but I accept that. I accept that as a repre-
sentation he has made here. Now that takes me to the next step,
and the next step is when he disagrees with the heightened scruti-
ny standard, which I think is the proper standard, then he goes
over to what Justice Stevens has said, then I start to pick up what
Judge Stevens has said because I want to understand where Judge
Bork is and what we may rely upon him.
And he, if confirmed, is going to be held to the standard not to be
disgraced in history, to fulfill his commitments. He might have
called them campaign promises, but to fulfill his commitments if
he is confirmed to this committee.
Now when you come down with the Stevens' standard, I would
have been more satisfied with heightened scrutiny because I know
a lot more about what that is. But then I come to the Stevens'
992
standards, and Justice Stevens articulated this standard obviously
in good faith and not looking for confirmation, but he says that he
does not like the three tiers because he does not understand it. And
he comes to the rational basis standard, and he takes up a lot of
considerations which are very important, considering the arm to
the members of the disadvantaged class, considering the tradition
of disfavor which is a critical factor, and then articulates this
standard.
So one of the issues that I am wrestling with is whether this
standard is about the same thing, which is what Judge Bork said it
was, the heightened scrutiny, and/or whether it is adequate.
My time is up, Mr. Secretary.
Mr. COLEMAN. Senator, I wish you would reread the first sen-
tence in Mr. Justice Stevens' concurring opinion, and frankly I
hope that if I ever get a chance to see him either in court or pri-
vately, I hope he will rethink that.
Senator SPECTER. In the Cleborne case?
Mr. COLEMAN. This is in Craig v. Boren.
Senator SPECTER. Craig v. Boren.
Mr. COLEMAN. When he says there is one equal protection clause.
It requires every Stateit does not direct the courts to apply one
standard in some cases and another standard in the other.
I have writtenand my feeling isthat when you read that 14th
amendment, it is clear if there is anybody protected by that amend-
ment, it is blacks. And I do not mind opening it up to the women
and other persons, but as a result of doing that, I do not want the
court to say that because there is only one standard under that
amendment, and the standard that applies to illegitimate children
or women or anybody else is less than the standard that would
govern the court applied the amendment only to blacks, that there-
fore I am going to apply that lesser standard also to blacks.
So I think if the first sentence in that opinion leads to that
result, with all due respect I think Justice Stevens is starting at
the wrong place.
The CHAIRMAN. If the Senator will yield, that is the point I at-
tempted to ask Judge Bork the second to the last day, I believe. If
there was one standard, has he merged all the standards?
And if the Senator would not mind my pursuing this just for a
moment with Secretary Coleman
Senator SPECTER. By all means.
The CHAIRMAN [continuing]. I do not recall. His answer was un-
clear to me. Then I suggested that if you are going to keep the
strict scrutiny standard on race and a reasonable standards merge
in the other two existing standards, is that not an extremely sub-
jective judgment? And does he not argue throughout his writings
that subjectivity is the one thing he seeks to avoid?
Mr. COLEMAN. I would agree with you, Senator. Frankly, I think
the first sentence in the concurring opinion is the wrong approach
and you will find a lot of people who say that that cannot be the
way you go.
The CHAIRMAN. Thank you for letting me interrupt.
Senator SPECTER. Well, if I may just raise another point or two
and conclude.
993
I think Judge Bork has moved a considerable distancewhether
you accept it or not is another pointto a reasonable standard test
and judicial interpretation which does not come from original
intent. Whether you accept it, that is the judgment call that the
Senate is going to have to make.
Mr. Secretary, when you point to the first sentence where Justice
Stevens says there is only one equal protection clause that requires
every state to govern impartially, it does not direct the courts to
apply one standard of review in some cases and a different stand-
ard in other cases. We want one standard for everyone in this
country. That is what we are looking for.
Whatever criticism may be leveled at a judicial opinion, implying
that there are at least three such standards, applies with the same
force to a double standard.
But, as you started off in your analysis about what happened to
the right to jury trial in a very clear-cut case, the court takes the
equal protection clause. It has trouble deciding whom it is going to
apply to. In 1886 it comes to aliens, and gradually it comes to indi-
gents, and then it comes to illegitimates, and then it comes to
women.
Then it adds an equal protection clause that has three tiers on it.
And then Justice Stevens calls it a double standard. He could have
called it a triple standard. We do not like double standards in this
country; we like triple standards less. Then he comes to a reasona-
ble-basis test and it is extraordinarily complicated.
Mr. COLEMAN. Can I give you a hypothetical? Take the law that
you voted onthe draft lawin which you exempted women. Cer-
tain males asked: is that unconstitutional? It was analyzed under
the heightened-scrutiny test and the Court said no, it was not. But
suppose you had been foolish enough to add, "and Blacks and
whites would be separate." You would get a different result. But if
you were to use the same test, you may not get a different result.
And that is the reason why I think it is a little bit too easy to say
because we want one standard we analyse all classifications the
same way.
The reason why I pulled back was that a lot of times in our liti-
gation we were always confronted with the argument that, well, if
you let blacks in, then you have to let women in. You know, there
are different standards. As it turned out, Girard College, which I
referred to earlier, also has women. But my point simply is that
different analytical standards are appropriate. And I just think
that for a judge to insist on one standard is not the way you can
handle the cases. Just think through the draft case again and I
think you will reach that conclusion.
Senator SPECTER. Thank you very much, Mr. Secretary. Thank
you, Mr. Chairman.
The CHAIRMAN. The Senator from New Hampshire, Senator
Humphrey.
Senator HUMPHREY. I like the way the Chairman says New
Hampshire. There seems to be a special ring to it.
The CHAIRMAN. It is growing in my affection every day.
Senator HUMPHREY. Mr. Secretary, being the most junior, or the
second-most junior of a committee is not the most advantageous po-
sition, as Congresswoman Jordan will recollect, because most of the
994
really interesting questions are used up by the time your turn
comes.
On the other hand, you have an opportunity to size up the wit-
ness and I had decided before the questioning traveled more than
half way down the panel that I was going to approach you very dif-
ferentially because you are a man who knows very much what he
is talking about, I would say, although I think many would dis-
agree with your conclusions in some respects; particularly with re-
spect to confirmation.
Do I read you correctly and hear you correctly that, to try to get
the essence of this now, your bottom line concern about Robert
Bork is how broadly or how narrowly he would read the intent of
the framers? Is that about right? I mean, you do not question his
professional competence, his integrity, any of that stuff?
Mr. COLEMAN. There is a wonderful opinion by Justice Harlan
which is set forth in the appendix about this idea. It is not a single-
minded focus on original intent. You must read the Constitution
with a lot of background of history and you make judgments.
Mr. COLEMAN. There are very few provisions in the Constitution
which are simple and anybody can read and always know what the
framers meant.
Senator HUMPHREY. Right. It does not always jump right out at
you.
Mr. COLEMAN. NO. What I am trying to say is that despite Judge
Bork's scholarship, his law school record, successful practice, serv-
ice as Solicitor General, there are several fundamental areas of the
law where he in his scholarship has a view of the Constitution com-
pletely different from the type of Constitution which I think this
nation lives under today. And in the liberty and privacy cases, I
would ask any of you, the next time you campaign, just to take
Justice Harlan's dissent in Poe v. Ullman, read it, and say, I am
against what he says there. And I think you will have a hard time
coming back to this place.
Mr. COLEMAN. The other thing is that in the crucial area of the
14th amendment he has a very restrictive notion of how you apply
that great amendment, and therefore, I hope that the Senate will
consider that as well. And you really come down to the fact that he
says: although I wrote all of this as a scholar, when I get on the
Court, precedent will sway me. I just ask you to re-read Appendix
C and see whether that is an adequate answer.
Senator HUMPHREY. That was a ratherthe answer does not
quiteI like to try to reduce things to their essence. Was I correct
in what I asserted, that your concern is how broadly or narrowly
Robert Bork would read the intent of the framers?
Mr. COLEMAN. NO.
Senator HUMPHREY. IS that an unfair question?
Mr. COLEMAN. That is completely misleading.
Senator HUMPHREY. I misread you.
Mr. COLEMAN. Well, yes.
Senator HUMPHREY. Then what is the essence of your concern?
Mr. COLEMAN. Once again, there are basic fundamental cases,
starting with Meyer v. Nebraska, which every Justice pretty much
995
has accepted, and Judge Bork says those cases are not constitution-
ally based, they are not in the Constitution. And secondly, that his
idea of your power under Section 5 of the 14th amendment and
Section 2 of the 15th amendment are completely different from
what the Court has said in nine to nothing decisions, and from
what I think each one of you up there think.
Therefore, you then come down to the fact that he expressed his
views as a scholar, he has not confronted those issues on the court
of appeals, and he says that certainly these hearings have educated
himwhich I hope they havebut you do not know what is going
to happen when he gets on the Court.
Senator HUMPHREY. YOU make the point that in many of his car-
dinal positions, or his position on cardinal points of the law, that
he stands apart from many whom you respect. But is it not also
true thatI am sure this is truethat many whom you do respect
agree with Judge Bork on some of these cardinal points of law.
Let me talk about Shelley v. Kraemer just briefly. Or let not me
talk about it, but let me cite some of the statements of persons
whom you probably respectI would think sowho agreeyou
see, it is not the result
Mr. COLEMAN. I am begging you to mention one of them. If you
do not, I will tell you who it is.
Senator HUMPHREY. All right. What does it start with?
Mr. COLEMAN. Why do you not start with Herb Wechsler?
Senator HUMPHREY. I will skip that one.
Mr. COLEMAN. Because he was the one who argued Times v. Sul-
livan 7 years later and won the case on the very legal theory that
he criticizes in the Columbia Law Review as not being solid good
law.
Senator HUMPHREY. Wechsler is one that I want to cite, as a
matter of fact.
Mr. COLEMAN. That would be fine.
Senator HUMPHREY. But the point I want to make before I do
that is that surely you do not think that Robert Bork opposes the
means? His question, his trouble with some of these landmark deci-
sions involves the method at arriving at the means; am I correct in
that assertion? You do not question his commitment to the end, to
equality before the law for all persons? You do question that?
Mr. COLEMAN. Well, you know, I do not question it if you mean
by that that he sits home at night and says, oh, gee, I do not be-
lieve in equality of the law. But when I took you through those
landmark civil rights cases, every one of which was won, and usu-
ally by a big vote, we saw that in his writings criticizing them, all
he did was criticize them and he did not then go on and say, this is
the way the court should have reached its result.
I think when you re-read the 1971 article and read the cases that
were decided since 1948 and up to the date he wrote in 1971 you
have to ask yourself why as a scholar he did not say, after pointing
out that the Court made a mistake, that this is the way the Court
should have done it.
Senator HUMPHREY. In any event, Shelley v. Kraemer
Mr. COLEMAN. On that I would ask you to read Lou Henkin's ar-
ticle on how he would have rewritten Shelley v. Kraemer in the Co-
996
lumbia Law Review, and you will see the difference of the types of
scholars you have.
Senator HUMPHREY. Okay. Shelley y. Kraemer. Am I rightI am
not a lawyer, by the waybut am I right that the effect of this de-
cision was to broaden the application of the 14th amendment? How
would you describe the effect of Shelley v. Kraemer?
Mr. COLEMAN. I would describe the effect of Shelley v. Kraemer
as saying that after fighting the war between the States and
having a debate on three great amendments and having this Con-
gress pass them, that what was decided in Shelley v. Kraemer was
well within what the 14th amendment meant. But the only tragedy
was, it was not decided a 100 years before it was.
Senator HUMPHREY. Yes. In any eventfor example, Professor
Laurence Tribe of Harvard Law School stated that Shelley's rea-
soning, quote, "consistently applied would require individuals to
conform their private agreements to constitutional standards
whenever, as almost always, the individuals might later seek the
security of potential judicial enforcement."
So Professor Tribe there seems
Mr. COLEMAN. He will be here. You can work him over on that.
Senator HUMPHREY. Okay. But I just wanted
Mr. COLEMAN. All I want to tell you, I would love to take him
through it. I would love to take any law school professor through
it. And I assure youdo me a favor. Just pull the cases that Chief
Justice Vinson citedand he was never known as a great liberal
justicejust read those cases.
Senator HUMPHREY. Okay.
Mr. COLEMAN. And after you read those cases, you say, if you
can, that that does not mean that when a State judge acts and by
his action deprives somebody of a constitutional right, that merely
because he got in this because a private person brought the law-
suit, that that does not violate the 14th amendment.
Senator HUMPHREY. Okay, but look, I am not trying to rehear
the case. The point I am trying to make is that a number of immi-
nent scholars and jurists agreed with Robert Bork that while the
result is salutory, the means was something else. The danger is, of
course, the means was something else, and the danger is, of course,
that the ends do not always justify the means and that we do not
want autocratic judiciary inventing all kinds of means because the
result is salutory, do we?
Mr. COLEMAN. If you put yourself back in 1948, sir, and try to be
black for a moment
Mr. COLEMAN [continuing]. Having been well educated, having
contributed a lot, seeing the long way you had to go to get where I
am here today
Mr. COLEMAN [continuing]. And see how you would react that in
every case decided, a scholar says that that case was wrongly decid-
ed. That is all I ask you. You live that experience and see how you
would react.
Senator HUMPHREY. I cannot even imagine it, but I can begin to
imagine it, and I would be pretty upset about it even to this day.
So I do not blame you for holding that concern, but the point I
997
want to makeand I wish you would either confirm it or deny it,
because it is an important point and out of fairness we ought to
establish this one way or the otherare there not many imminent
scholars like Professor Laurence Tribe, are there not many mem-
bers of the Supreme Court, past and present, who have cited, not
explicitly, but who have shared, shall I sayshared the same point
of view about some cardinal decisions that Robert Bork holds; is
that not true? Or are you saying he stands out there all by himself
completely isolated and that there is not one respected jurist or
scholar who has ever agreed with him on these important points?
Mr. COLEMAN. If you say you are not a lawyer, you should be one
because you have now asked the question that anybody would have
to say, well, obviously, I am pretty sure on every issue you might
find one person who would not disagree with him. But I do not
think, if you take the whole package, you will find any scholar that
would agree with that whole package.
Senator HUMPHREY. Well, of course not. I did not suggest that,
nor should we expect to. But the point I think is valid. In the case
of Shelley v. Kraemer, I have read the quote from Professor Lau-
rence Tribe and no one questionedmy goodness, he is, as I under-
stand it, one of the most liberal law professors in the country, to
use the vernacular expression.
Mr. COLEMAN. I do not know what that word means, sir. I do not
know what liberal means. We confuse ourselves when we say liber-
al.
Senator HUMPHREY. That is right, but you know what I am talk-
ing about. He is hardly a conservative professor of law. And he
agreed with Robert Bork on this extraordinarily important point
over which you have made such a fuss. And I understand where
you are coming from.
In the matter of privacy, again, very, very important. And again,
I want to emphasize that Judge Bork acknowledges that there are
explicit and very important privacy rights in the Constitution: The
right to be free of unreasonable searches and seizures; the right to
free speech, and so on.
What he is saying is not that there is not a right to privacy in
the Constitution, but what he is saying is that there is not a vast,
broad, unlimited general right to privacy in the Constitution, and
on that pointthat there is not a vast, broad, unlimited right to
privacy in the Constitutionmany prominent jurists have agreed
with him.
Mr. COLEMAN. I think anybody in the room would agree to that. I
think Congresswoman Barbara Jordan will say that you certainly
hate to have kept her here all this time and not have her put on
have to make those judgments. But I do not think you can go home
and find anybody who will tell you that the right to marry is some-
thing that the State should be able to interfere with. I do not think
you can go home and get anybody to agree with you that if you
want to send your kid to a private school, you cannot do that.
Senator HUMPHREY. Quite so.
Mr. COLEMAN. It is a very narrow limit, and the whole debate is
over whether in addition to those things that are in the first eight
amendments, there are some other fundamental rights that every
998
American had from the day he or she was born with which the
State can not interfere.
Senator HUMPHREY. Quite so. By virtue of being a child of God. I
agree with you in the concept, but the problem is that when you
had judges who claim that there is a very broad right to privacy,
then they make decisions about which explicit rights must be hon-
ored and which not. Is there a right to use drugs in private?
Mr. COLEMAN. No.
Senator HUMPHREY. IS there a right to homosexual conduct or
sodomy? Where do you draw the line? The problem is that if you
do not have a nice consistent system, if instead you have judges de-
ciding which rights are included in privacy and which not, then
you have the rule of judges and not rule of law.
Now, I know these things are not
Mr. COLEMAN. Sir, will you do me a favor?
Mr. COLEMAN. When you go home, will you re-read the piece that
I did on Justice Harlan, pages 5 and 6well, start with pages 2
through 6 and then read the piece on Justice Frankfurterthey
describe for you how a federal judge in a democratic society is sup-
posed to work.
I do not think that anybody that knew Justice Frankfurter
would say that he would enact in his decisions his personal feel-
ings. But there are certain fundamental rights that people hold.
There is a way you pick them out and they are very limited.
Senator HUMPHREY. Quite right.
Mr. COLEMAN. But you do not say that they are not in the Consti-
tution.
Senator HUMPHREY. That is not the final word on that argument
but it must benor will it be, probably, for centuries, but it must
be in this case because my time is very nearly running out. I had
so much more. I hope I can get invited to this luncheon with Sena-
tor Simpson that you guys were talking about.
Let me just ask you this, finally, before I get cut off by the Chair-
man.
The CHAIRMAN. I am not going to cut you off. Your time is up,
but we all have exceeded our time, so you will be right in the main-
stream.
Senator HUMPHREY. By the way, I hope Congresswoman Jordan
does not have a class to teach this afternoon.
The CHAIRMAN. I think I have already ruined her schedule.
Senator HUMPHREY. Senator Specter made the very important
point that this is one of the most important classes that has been
conducted in a very long time, and I surely agree with that. There
have been a lot of really interesting and exciting celebrations of
the bicentennial of the Constitution, but I would not have missed
this for the world, because of all of the hundreds and thousands
that have taken place across our country, this has been the most
important, this unintended observance or celebration of thethat
is to say, it was not meant to be a celebration of the bicentennial,
but it has turned out to be.
Let me just ask this in closing. Nobody, as far as I know, chal-
lenges the devotion to the equality before the law for all persons,
irrespective of any classification, of former President Gerald Ford.
999
How in the world do we in this panel reconcile, how do the Ameri-
can people, reconcile the appearance of President Gerald Ford in
behalf of confirmation of Robert Bork and the appearance 2 days
later of a man who served so well in the Ford administration who
is urging the rejection of this nominee? How do we reconcile that?
Mr. COLEMAN. Very simply. We live in a democratic country. The
most important thing is to have differences of opinion, to argue, to
discuss, but in the end to shake hands and unite jointly to defend
this country, to defend this Constitution, and also to make sure
that we leave both the country and the Constitution for our chil-
dren in as good shape as when we enjoyed them.
Senator HUMPHREY. Or better.
Mr. COLEMAN. Or better.
Senator HUMPHREY. I wish I had more time.
The CHAIRMAN. Thank you. I will yield 5 minutes to the Senator
from Massachusetts and then we will conclude.
I, too, want to acknowledge the remarkable career of Secretary
Coleman; not only his academic career at college, at the University
of Pennsylvania, at Harvard Law School and the Law Review and
then coming down and serving as law secretary for Felix Frank-
furter, then serving in President Ford's Cabinet with great distinc-
tion. In practice, he appeared before the Supreme Court on 18 dif-
ferent occasions over three decades, and he has really reached the
pinnacle of success both in the public and private sectors. I think
all of us who have listened to him this morning, our knowledge has
been advanced and enhanced, both by his understanding of the
Constitution and by his review of the many cases that have made
this a better society and a better country.
I just wanted to touch on one or two points. One, I think, is
really quite obvious, although there has been at least some at-
tempt, intentional or unintentional, to confuse the issue. That is
the distinction between the court of appeals and the Supreme
Court. It is very real.
The Supreme Court makes precedent. The courts of appeal inter-
pret it. I think it is a reasonable question to set a standard to un-
derstand what kind of new precedents are going to be established
in the interpretation of the Constitution and what kind of prece-
dents are going to be overruled. As I understand it, that is basically
at the core of the distinction between the Secretary's decision at
one time to endorse the nominee for the circuit court and to ex-
press reservations and opposition to him for appointment as an As-
sociate Justice to the Supreme Court.
Mr. COLEMAN. That is a fair statement; although I hope when
you press the American Bar Association, they will tell you when
they come up here that when they say they found him qualified,
that that does not mean that they are also endorsing him or asking
you to endorse him.
That is the difficulty. Lawyers do what they are told to do; and if
you would reread what my assignment was, I think that you begin
to see the distinction I am trying to make.
Senator KENNEDY. I was also interested in an earlier response to
a question where you indicated that the summary of this Judge's
opinions, going over a long period of timethe summary of both
1000
his statements, speeches, writingsdraw you to the conclusion that
it would be extremely difficult to find anyone in the scholarly area
of constitutional opinion that would agree with all of his conclu-
sions.
The history is that many of those who had sided with some of the
positions that have been taken by Judge Bork at different times al-
tered and changed their positions and found ways in the future, by
their own actions both in public and private, to vary the decisions
that they had made earlier. I think Secretary Coleman has illus-
trated it.
So what we are basically talking about is just not one particular
area of decision, but we are talking about a culmination. I think
you made the case, which I think is an important one, that when
you review that total culmination, you are talking about someone
that is out of the mainstream.
Let me just go into two final areas, Mr. Secretary. When Judge
Bork was before us and he was being asked about his past writings
and about his statements and about his positions, in response to
one of the questions he said, "Well, I would think that any woman
or any man who reviewed my position as Solicitor General, and
also my positions as a circuit court judge, would feel completely re-
lieved of any anxiety"I can get his exact quote"would feel ef-
fectively""if I were a black man and knew my record as Solicitor
General and Judge, I would not be concerned because my civil
rights record is a good one." This was in response to both women
and men.
I am just asking you, because we are going to hear over the
course of the debate, well, let us forget about what was done be-
forehand; let us take the position of Judge Bork both as Solicitor
General and on the court.
Now, how do you answer that? Do you share that assessment?
That is the question.
Mr. COLEMAN. Well, sir, I wish you would look at page 38 of my
testimony, footnote 2. To the best of my ability, I have tried to
answer that question.
Senator KENNEDY. I will do that and ask the Chair to
The CHAIRMAN. Why do you not just read it, if you do not mind.
Mr. COLEMAN.
If it were claimed that Judge Bork's constitutional views derived from some
animus towards minorities or women, the filing of briefs in statutory civil rights
cases might be of some relevance. The objection set forth in this testimony, however,
turns on the substantive injustices that Judge Bork's views of the Constitution
would permit, so any claim of malice on his part is not reached. There is no need to
reach the issue whether his personal views would lead him, when reviewing a clear-
ly drafted congressional enactment prohibiting sex or race discrimination, not to
apply the literal words of the statute. The concern, rather, centers on his judicial
review of a statute prohibiting a state practice, which the Supreme Court prior to
the enactment of the statute had held did not violate the 14th or 15th amendments,
see Northampton County Board of Elections case, and which practice Congress sub-
sequently prohibited by statute, after legislative findings that the practice adversely
affected persons because of their race or sex.
If Judge Bork adhered to his previously expressed criticisms of Katzenbach v.
Morgan, or Oregon v. Mitchell, he would either invalidate such a statute as exceed-
ing Congress' powers under Section 5 of the 14th amendment or Section 2 of the
15th amendment, or he would construe such a statute so narrowly (to avoid his per-
ceived constitutional defects) as to eviscerate their effect and undermine congres-
sional intent.
1001
And that is what my problem is.
Senator KENNEDY. A final question. As I mentioned, you have ap-
peared before the Supreme Court 18 times; you have known many
of the distinguished Justices. Perhaps the one you knew the best
was Felix Frankfurter. You have an insight, obviously, into the
writings of Harlan and many other conservative jurists and those
that have believed in the judicial restraint.
I am wondering what your opinion is of those that have tried to
put Judge Bork in the same mold as Felix Frankfurter in terms of
the issues of judicial self-restraint. How does that hold up, given
both your understanding of Justice Frankfurter and your review of
the readings and statements of Judge Bork?
Mr. COLEMAN. In Appendix A and B, I deal with that issue.
Senator KENNEDY. I saw those two, A and B.
Mr. COLEMAN. It seems to me, as I read Judge Bork's writings,
that he is completely inconsistent with the manner in which Mr.
Justice Frankfurter or Mr. Justice Harlan would handle compara-
ble issues.
There is a wonderful passage here, which I will not read, as to
just what judicial restraint means. I do not think that a person
who comes on the public scene as late as Judge Bork did and who
goes out of his way to reject a whole line of cases starting in 1923
incidentally, it really did not start in 1923, it started in 1891, and
the first case was a case where the United States Government sub-
poenaed Governor Harriman's father to bring all his records down
here, and he successfully resisted that on the grounds that it impli-
cated the right of privacy and that therefore the State should not
get a person's own private record; so this is something that has
really been in the law since 1891can plausibly justify his views as
based on a philosophy of judicial restraint. You cannot under the
guise of judicial restraint go out and just roam around and adverse-
ly affect a lot of people. But, by the same token, you are not exer-
cising judicial restraint if you want to eliminate the constitutional
gains that already have been made. To me, that is not judicial re-
straint.
Senator KENNEDY. Thank you very much, Secretary Coleman. It
has been a pleasure to hear your testimony.
Mr. COLEMAN. Thank you.
The CHAIRMAN. Mr. Secretary, if it is the quote I think you are
referring to, it really warrants being read; at least this one in my
view. They all do. But it says, "The exercise of judicial judgment is
unavoidable, he stated, and '[t]o believe that this judicial exercise
of judgment could be avoided by freezing 'due process of law' at
some fixed stage of time or thought is to suggest that the most im-
portant aspect of constitutional adjudication is a function for inani-
mate machines and not for judges, for whom the independence
safeguarded by Article III of the Constitution was designed and
who are presumably guided by established standards of judicial be-
havior.'
That is what you are referring to?
The CHAIRMAN. Powerful.
Mr. Secretary, I must tell you, I have not been here as long as
my colleagues on my left and my right, but I have sat here for 15
1002
years. I thought I knew you before you came up because I was here
when you were Secretary of Transportation. On mass transit
issues, I was often petitioning you with regard to Amtrak and
other things. I thought I knew you, and I was impressed then.
I must tell youand I am not being solicitous, presumptuous, for
me a younger man to say this about youbut I have been more
impressed by you as a witness today than any witness I have ever
sat and listened to in any hearing. I knew you were a man of great
integrity and passion and feeling, but I am amazed and impressed
by the depth of your knowledge of the law, your reverence for the
Constitution, and your facility to discuss it.
Whether or not Judge Bork should or should not be on the Court
will be decided by the whole body, but I want to tell you, there is
not a President now or in the future who would have made a mis-
take by putting you on the Supreme Court of the United States of
America. You are truly an impressive man, and your testimony
here today is one I will not forget, nor do I think the proponents or
opponents of Judge Bork will soon forget.
You are a man of high honor. It was truly a pleasure to have you
here. Thank you very much.
Mr. COLEMAN. You are very kind to say that, sir, but I would tell
you that if this country was as great 50 years ago as it is today,
and if Charles Houston had ever appeared before you, you would
have found him a much superior person, and similarly if Judge
William Hastie had ever appeared before you. There are some aw-
fully bright, able people. They did not get the opportunity. This
country since 1945 has been doing much better with respect to race
and gender issues. You have had an opportunity to see me func-
tion; wait until you see some of those young women lawyers I have
in my law firm.
The CHAIRMAN. I saw two behind you. Obviously, they were look-
ing with great pride at you.
Mr. COLEMAN. Really, I mean that is what this country is about.
I really love every moment of it. I appreciate your giving me the
opportunity to come here. Thank you.
The CHAIRMAN. Thank you very much for being here.
Now, we will proceed immediately to Professor Jordan, Congress-
woman Jordan has been waiting patiently.
Let me tell my colleagues what my desire is, and I hope they will
accede to it. I would like very much to have Professor Jordan give
her testimony and respond to questions. And although Mr. Mar-
shall and Mayor Young are here, if they would be willing to come
back after lunch, then in the meantime we will decide exactly the
order. But our last witness prior to adjourning for lunchwhen-
ever we adjourn for lunchwe will do it, I believe with the ranking
member's permissionfor an hour and 15 minutes when we ad-
journ.
Without any further ado, let me say that Congresswoman Jordan
currently holds that LBJ Centennial Chair at the LBJ School of
Public Affairs, University of Texas. She teaches policy development
and ethics. She is a former Congresswoman, as we all know. She
attended the celebration last week at the Archives for the Constitu-
tion day on the celebration of the bicentennial.
1003
There is much more to say, but there is one thing for certain: As
we all know from when you were in the Congress and spoke to the
national television audience in the late 1970s and every^time you
spoke here, you are a woman of great passion, conviction and clar-
ity. It is an honor to have you here, and I would ask you to raise
your right hand if I may, Congresswoman, and be sworn.
Do you swear to tell the truth, the whole truth and nothing but
the truth, so help you God?
Ms. JORDAN. I do.
TESTIMONY OF BARBARA JORDAN
Ms. JORDAN. Thank you very much, Mr. Chairman.
I am delighted that you gave me the chance to come and give my
thoughts on your task. I am opposed to the confirmation of Robert
Bork to the Supreme Court of the United States. My opposition is
not a knee-jerk reaction of followership to the people or organiza-
tions whose views I respect. My opposition is a result of thinking
about this matter with some care, of reading the White House posi-
tion paper in support of Robert Bork, of reading the Judiciary Com-
mittee, your committee's point by point response to that position
paper, discussing the matter with friends and people I respect,
reading some of Judge Bork's writings. But more than any of that,
my opposition to this nomination is really a result of living 51
years as a black American born in the South and determined to be
heard by the majority community. That really is the primary basis
for my opposition to this nomination.
I concede Judge Bork's scholarship and intellect and its quality,
and there is no need for us to debate that. But more is required.
When you experience the frustrations of being in a minority posi-
tion and watching the foreclosure of your last appeal and then sud-
denly you are rescued by the Supreme Court of the United States,
Mr. Chairman, that is tantamount to being born again.
I had that experience. The year was 1962. I had graduated from
Boston University Law School in 1959. I went back to Houston,
Texas, with my law degree in hand, and the Democrats around
there said, in 1962, "Your work with us since you have been here
makes us think you ought to run for the Texas House of Represent-
atives." I said, "But I have no money to run." They said, "We will
loan you the money." And so on a borrowed $500, I filed for the
election to the Texas House of Representatives. I ran. I lost. But I
got 46,000 votes.
I was undaunted. I said I will try that again because I think my
qualifications are what this community needs. So in 1964, I ran
again for membership in the House of Representatives of the State
of Texas. I lost. But I got 64,000 votes.
Why could I not win? I will tell you why. The Texas legislature
was so malapportioned that just a handful of people were electing a
majority of the legislature. I was dispirited. I was trying to play by
the rules, and the rules were not fair. But something happened. A
decision was handed down: Baker v. Carr. That decision said this:
The complainant's allegations of a denial of equal protection
present a justiciable constitutional cause of action. The right as-
serted is within the judicial protection of the 14th amendment.
Following Baker v. Carr, a series of cases were decided. The
Texas legislature was required, mandated by the Supreme Court to
reapportion itself. It reapportioned. So in 1966, I ran again. The
(1004)
1005
third time. This time in one of those newly created State senatorial
districts I won.
My political career got started. Do you know what Judge Bork
says about those cases on reapportionment? He has disagreed with
the principle of one person, one vote, many times.
In his confirmation hearings in 1973, this is what he said: "I
think one man, one vote, was too much of a strait-jacket." And
then he continued: "I do not think there is a theoretical basis for
it."
My word. "I do not think there is a theoretical basis for it."
Maybe not, gentlemen. Maybe there is no theoretical basis for one
person, one vote, but I will tell you this much. There is a common
sense, natural, rational basis for all votes counting equally.
We once had a poll tax in Texas. That poll tax was used to keep
people from voting. The Supreme Court said it was wrong, out-
lawed it. Outlawed it.
Robert Bork said the case was wrongfully decided. You have
talked much about the right of privacyGriswold to Roe, and
others. Judge Bork has his theoryif you cannot find that right
within the letter of the Constitution, explicitly, it is not there. It
does not exist.
I believe that the presence of that point of view on the Supreme
Court of the United States places at risk individual rights. It is a
risk we should not afford. We do not have to.
I like the idea that the Supreme Court of the United States is
the last bulwark of protection for our freedoms. Would the mem-
bership of Judge Bork alter that altogether? I do not know whether
that is the case, but that is not the question.
I do not want to see the argument made, that there is no right to
privacy on the Court. I do not want that argument made, and the
only way to prevent its being made is to deny Judge Bork member-
ship on the Court.
I do not know whether you have read in your papers Mr. Justice
Brandeis' dissenting opinion in the Olmstead case. If you did, you
would read that Justice Brandeis made it very clear, that there is
indeed a right of privacy, that it is really explicit, and that it is
bottomed in the fourth and fifth amendments. Justice Brandeis
makes that clear.
The presence of a Judge Bork on the Supreme Court places that
in jeopardy. I was listening and watching these hearings, and I
heard Judge Bork say he was not sure what the ninth amendment
meant. That there was a lot of confusion surrounding the ninth
amendment.
I certainly do not pretend to be able to say what the ninth
amendment means, but I can say that if you hold the view which is
espoused by Robert Bork, there is a built-in inconsistency in the
Constitution, and we know that every word of the Constitution is to
be given some effect.
We understand that right. The Declaration of Independence pre-
ceded the Constitution, and the Declaration of Independence speaks
of inalienable rights endowed by our Creator with inalienable
rights, among them life, liberty, pursuit of happiness.
So they are not the only oneslife, liberty, pursuit. There are
others, and those others should be given effect.
86-974 0 - 8 9 - 3 4
1006
Now you know what Judge Bork would say. "Listen. I approve of
the results of the reapportionment cases. I approve of the outcome
in many of those cases, but my problem with the whole matter is
that I don't like the reasoning which was used."
Well, let's look at that for a moment. A Borkian view. "Don't
like the reasoning that was used. Approve of the outcome. What
you really ought to do is let the democratically elected bodies make
these decisions. That is the proper way to proceed."
Gentlemen, when I hear that, my eyes glaze over. If that were
the case, I would right now be running my 11th unsuccessful race
for the Texas House of Representatives. I cannot abide that.
I know you have talked about the Saturday Night Massacre, and
I know that there has been much discussion about whether what
Judge Bork did in firing Archibald Cox was legal or illegal.
There is a court decision that says it was illegal, and then Sena-
tor Hatch would say, "Oh, but that decision has been set aside and
it is a nullity."
All I can say to you is that on the day, and at the time that
Robert Bork fired Archibald Cox, there were rules and regulations
in place, viable, alive, with the force and effect of law. They were
violated, and, to me, that means the Solicitor General acted illegal-
ly. To me, that is not very difficult to understand.
The Office of Special Prosecutor and Independent Counsel is
under attack right now. For you to confirm Robert Bork to the Su-
preme Court I think sends the wrong message. I believe that such a
confirmation would indicate that it is all right with you for a
person to sit on the Supreme Court who has utter disdain for the
Office of Special Prosecutor.
I do not think that is the message you want to send. Constitu-
tionalism is a part of the cultural glue of this country. The Su-
preme Court should be the ballast to keep the ship of state from
making wide, unanticipated swings. A new Justice should help us
stay the course, not abort the course.
I want to conclude by reading a quote from a professor at the
Yale Law School, at the time this was written, Charles Black. It is
a note which he wrote in the Yale Law Journal, 1970. I think it is
important.
If a President should desire, and if chance should give him the opportunity to
change entirely the Supreme Court of the United States, he may do that, and noth-
ing would stop him except the United States Senate. The question is, for the Senate,
whether the nominee holds such views, that when transposed into judicial decisions,
they are bad for the country.
You have every right to look into the judicial philosophy of
Robert Bork, because Mr. Black said at the conclusion of that arti-
cle: "In a world that knows that a man, a nominee's fitness for
office, in this kind of a world, his social philosophy shapes his judi-
cial behavior." You must inquire into whether that philosophy af-
fects his fitness for office.
You have a satisfactory basis for voting against this nominee,
and I urge you to do that.
[Material follows:]
1007
A Note on Senatorial Consideration of

Supreme Court Nominees
Charles L. Black. Jr.f

' j If a President should desiie, and if chance should give him the op-
portunity, to change entirely the character of the Supreme Court,
shaping it after his own political image, nothing would stand in his
wav except the United States Senate. Few constitutional questions arc
then of more moment than the question whether a Senator properly
ma), or e\en at some times in duty must, \ote against a nominee to
that Court, on the ground that the nominee^ holdsvigws whicb^_w.h_eD
transposed iuip_Judicia] decision^ are likely, in the Senator's judg-
ment, to be \er\ bad foi the countryJlt is the purpose of this piece to
open discussion of this question; I sfrSll make no pretense of exhausting
that discussion, for iny own researches ha\e not proceeded far enough
to enable me to make that pretense.1 I shall, howe\er, open the discus-
sion b\ taking, strong!), t"ie position that a Senator, voting on a pres-
idential nomination to the Court, not only ma) but gencralh ought to
vote in the negathe, 1; he fimny believes, on reasonable grounds, that
the K:uni;,ee's views on the large issues of the da\ will make it harmful
to the countr) for him to sit and \ote on the Court, and thrt, on the
other hand, nc Senator is obligated simply to follow the President's
lead in this regard, or can rightl) discharge his own duty by so doing.
I will open with two prefatory observations.
First, i: has been a \ cry long i::r>e since an)bod) who thought about
the subject io anv effect has been possessed by the illusion that a judge's
judicial work is not influenced ana formed by his whole life\:ew, by
his economic a:.d political comprehend' ^ns, and b\ hi: sence. :'iaip or
i Hem- R Luce Troft-ssoi of ; i-.nsprudcncc, Vale lir.:\c, .it\. B.A. 1935 M.A 19SS,
U i m e i s i u of Texas, LL.B 194", Vaic
1. I shall not proM.ic this disci:-MOH with an elaborate footnote apparatus I . . sorrv
to say ill,.: I < nnot acknouledge ckbi, for I am \witing fion^ n>-\ mind, e- 'urienrc
tejehes tfi.it, v :ieii one doc* this, o;.c untonsciousH draws r ;i imicli r c a d i r c consciousi\
fonrotiei: for :<\\ such oLihpations unw ,;tuigl\ incuiTeti I iri\t thanks. I hdvc had the
l>cr.cfu of (l'.i(i:ssion of m..m of the p>> ts made herein v i t h -'udciLs at Hie \ a l e La'w
SCJKUI. of v n o n . 1 vpi'cifii.;]') recolird l>unald Tauluing l r u i n , 1 ha\ also Had the. benefit
oi lail.mj' if; h..o abou: tn. picet af.cr it uas \vi:ttcn
U'viRis. '] HE ADMCE > S I ' U . N ^ L M oi THE SIIN .TE i'!93Si canit to ni) attention and hands
aiic- the piesent piece fuel gone to ttic printer This excellent and full account of the
cntii' funcLirin would doubLless h a i c fieshed out rm o u n tnought5 but 1 see nothing in
tin rook >'.at would make me alKr the position taken heie, and I hope a single-snc:
thesis like Hit ;>ic--nt ^la^ Oi useful.
657
1008
The Yale Law Journal Vol. 79: 657, 1970
vague, of where justice lies in respect of the great questions of his time.
The loci classici for this insight, now a platitude, aie in such writers
as Oliver Wendell Holmes, Jr., Felix Frankfurter, and Learned Hand.
It would be hard to find a well-regarded modern thinker who asserted
the contrary. The things which I contend are both proper and indis-
pensable for a Senator's consideration, if he would fully dis.narge his
duty, are things that have definitely to do with the performance of the
judicial function. The factors I contend are for the Senator's weighing
are factors that go into composing the quality of a judge. The conten-
tion that they may not properly be considered therefore amounts to
ihe contention that some things which make a good or bad judge may
be consideredunless the Senator is to consider nothingwhile others
may not.
Secondly, a certain paradox would be involved in : negative answer
to the question I have put. For those considerations whi.;h I contend
are proper for the Senator are considerations which certainly, no-
toriously, play (and always have p ayed) a h.rge, often a crucial, role in
the President's choice of hi. nominee; the assertion, tlK:efore, that they
should pin) no part ii. the Senator's decision amount to an assertion
thru the authority the: must "advise and consent" to a nomination
ought not to be guided b\ considerations which aie hugely important
in the making of the nomination. One has to ask, "Win"? I am not sug-
gesting now that there can be no answer; I cnly sa) that an answer must
be given. In the normal case, he who lies under the obligation of
making up his mind whether to advise < nd consent to a step considers
the same things that go into the decision whether to take that step. In
the normal case, if he does not do this, he if dcTe'ict in ris du:^
I ha\e called this a constitutional question, and .; is liiat (u>. >dgh it
could ne\er reach a court), for it is a question abo-it the allocation of
power and responsibility in government It is i.atmal, then, for Amer-
ican lawyers to look first at the applicable text, for what light it may
cast. What ex:>ectation seems to be projected b; th c voids. "Yne Pres-
ident . . . shall nominate, and bv and vith the Advice ar d Consent of
the .'.enate sh^ll appoint . . . Judges of tne Supreme Couri . . . ."?2 Do
these words suggest a rubber-stamp function, confined to s -eening out
proven malefactors? I submit that they do not. I submit that the word
"advice." unless its meaning has radically changed sinr^ 1787, make;
next to impossible that conclusion.
2. US CONST, art II, J 2, cl. .

1009
Senatorial Consideration of Supreme Court Nominees
Pioccdurally, the stage of "advice" has been short-circuited 3 No-

body could keep the President from doing that, for obvious practical
reasons. But why should this procedural short-circuiting have any effect
on the substance so strongly suggested b) the word "advice"? He who
merely consents might do so perfunctorily, though that is not a neces-
sary but merely a possible gloss. He who advises gives or withholds his
advice on the basis of all the relevant considerations bearing on decision.
Am I wrong about this usage? Can you conceive of sound "ad\ ice" which
is given by an advisor who has deliberately barred himself from con-
sidering some of the things that the person he is advising ought to
consider, and does consider? If not, then can the Presidents, by their
unreviewable short-circuiting of the "advice" stage, magically have
caused to vanish the Senate's responsibility to consider what it must
surely consider in "advising"? Or is it not more reasonable to sn) that,
in deciding upon his vote at the single point i.ow left him, every Sen-
ator ought to consider e\ en thing he would ;;ave considered if. p:o-
ceciuially, he wei e "advising"? Does not the word "advice" permanently
and inescapabh define the s(( vc of Senatorial consideration?
It is characteristic of our legal culture both to insist upon the textual
reference-point, and to be in patient v ' en much is made of it, so I will
lc.!\? what I ha"s e said about this to the reader's consideration and
pass on ro ask whether there ib anything else in the Constitution itself
which coirpelsbr suggests a restriction of Senatorial consideration to a
few rather than to all of the factors which go to making a good judge.
I sa} ihere is not; I do not know what it would be The President has
to concur in legislation, unless his veto be o\erridden. The Senate has
to concur in judicial nominations. That is the simple plan. Nothing
ar.vwhere su 2 crests that some duty rests on the Senator to vote for a
nomination he thinks unwise, an) more than that a dun rests on the
Pi evident to sign bills he thinks unwise.
I.- there something, then, in the who;e ^rru.; ;re of the situation,
something unwritten, that n.akes it the dun of a Senator to vote for a
man whose \iews on great questions the Senator belie\es to make him
dangerous as a judge? I think there is not, and I !>ehe\e 1 can best ma\e
nv> point b\ a contrast. The Senate has to confirmadvise and consent
3 Even this ;'"iort-circuiting is not complete. First the President's "appointment,"

r.ucr the Senate's action, is Mil! voluntary (Marfaury v. Madison, 5 U.S (I Crunch) 137, 155
j,Si'3)l, so that in a sense th' action of the Senate e\en ui'der settku practice rna'\ be
lookrti on as o n h '"advisor*" v.ith respect to a step from which the President ma\ still
VMLI, ( I \ W . St.'iid'h , nomin;.tic>. <- ?..! cn.-:iMonall\ wunclrawn afiei public indications of
Senate sentiment (and provable action^ winch maj bo '.nought to amount to "advice "
659
1010
The Vale Law Journal Vol. 79: f>'7, 1970
tonominations to posts in the executive department, including cab-

inet posts. Heie. I think, there is a clear structural reason for a Sen-
ator's letting the President ha\e pretty much anybody he wants, and
certainh for letting him have people of any political views that appeal
to him. These are his people; thev are to work with him. Wisdom and
fairness would give him gieat latitude, if strict constitutional obliga-
tion would not.
Just the re\ crse. just exacth the ie\crse, is true of the judiciary. The
judges are not the President's people. God foibid! They are not to
work with him or for him. They are to be as independent of him as
they aie of the Senate, neither more nor less. Insofar as their policy
orientations aie materialand, as I ha\e said abo\e, these can no
longer be regarded as immaterial by ambody who wants to be taken
seriously, and are certainly not regarded as immaterial by :he Pres-
identit is just as important that the Senate think them not harmful
as that the President think them not harmful. If this is not true, why is
it not? I confess here I c.tnnot so nine! as anticipate a rational argu-
ment to which to address a lebuttal.
I can, however, offer one further argument tending in the same di-
rection. The Supreme Court u a body of great power. Once on the
Court, a justice wields that power without democratic check. This
is as it should be. But is it not wise, before that power is put in his
hands for life, that a nominee be screened b\ the democracy in the
fullest manner possible, rather than in tlu narrowest manner possible,
under the Constitution? He is appointed by the President (when the
President is acting at his best) because the President beli" es his world-
view v, ill be good for the country as reflected in his |udicial per-
formance. Th- Constitution certainly permits, if it does not compel,
the taking of a second opinion on this crucial question, from a bodv
ju^t as responsible to the electorate, and just as close to the electorate,
as i;> the President. Is it not wisdom to take that second opinion in all
fullness of scope? If not. again, win not? If so. on the other hand, then
the Senator's duty is to \ote on his v. hole estimate of the nominee, for
that is what constitutes the taking of the second opinion.
Textual considerations, then, and hich-political considerations, seem
to me strongly to thrust toward ihe conclusion th.'- a Senator both may
and ought to consider the life\iew and ph..osoph\ of a nominee, be-
fore casting his \ote. Is there am thing definre in history tending in
the contrary diiection?
In t'ae Constitutional /^mention, there was much support for ap-
pointment of judges by th, Senate alonea mode which was aopro '_d
660
1011
on Jul\ 21, 1787,4 and was carried through into the draft of the Com-
mittee of Detail.-" The change to the present mode came on Septembe:
4th, in the report of the Committee of Eleven0 and was agjeed to ncm.
con. on September 7th.7 This last vote must ha\e meant that those who
wanted appointment by the Senate aloneand in some cases by the
whole Congresswere satisfied that a compromise had been reached,
and did not think the legislative part in the process had been reduced
to the minimum The whole process, to me, suggests the ver\ re\erse of
the idea that the Senate is to have a confined role.
I have not reread every word of The Federalist for this opening-gun
piece, but I quote here what seem to be the most apposite passages,
from Numbers 7f> and 77:
But might not his nomination be overruled? I grant it might,
vet this could onl) be to make place for another nomination by
himself. The person ultimately appointed must be the object of
his preference, though perhaps not in the first degree. It is also
not ven probpble thai his nomination would often i>e overruled.
The Senate could n^t be tempted, by the preference thev might
itci to brother, to icect the one proposed; because they ccild not
assure themselves, mat the person they might wu'.i wo.ild be
brought forward b) a second or by any subsequent nomiirition.
They could not even be certain, tha: a future liomin..1 ion wot.I '
present a candidate in an} degree more acceptable t--. them; and
as their dissent migrt cast a kino of stiirma upon the individual
rejected, and might have the appearance of a reflection upon the
judgment of the chief magistrate, it is not likely that their sanction
v\ould often be refused, where tru e weie not special and strong
reasons for the refusal.
To what purpose then req.:i:<j t:,e coopc. 'ion of the Senate?
I answer, that the necessity of their concuncnce would have a
powerful, though, in general, a silent operation. It would be an
excellent check upon a spirit of . .voruism in the President, and
would tend great!v to prevent tin. appointment of unfit charac-
ters fiom State prejudice, from famiiv connection, fiom personal
attachment, or from a view to popularity Ir addition to this, it
would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself
the sole disposition of offices, would be governed much m ".re bv
his private inclinations ana interests, than when he was bound t<>
submit the proprien of his choice to the discussion and ceter-
mination of a different and independent bociv, and tnat bod) an
4. 'JL RrcoRDS or THE I n>rkAL GOWENTIOV or 1767. at 83 (M r . v r a n d ed 2911}

5 Id ai 132, 14G, Vjb, 1G9, 18S
C Id a1 49K
7 Id. ai :." '.
1012
The Yale Law Journal Vol. 79: 657, 1970
entire branch of the legislature. The possibility of rejection would

be a strong mothe to care in proposing. The danger to his own
reputation, and, in the case of an electhe magistrate, to his po-
litical existence, from betraying a spirit of favoritism, or an un-
becoming pursuit of popularity, to the observation of a body
whose opinion would have great weight in forming that of the
public, could not fail to operate as a barrier to ihe one and to the
other. He would be both ashamed and afraid to bring forward,
for the most distinguished or lucrative stations, candidates who
had no other merit than that of coming from the same State to
which he particularly belonged, or of being in some way or other
personally allied to him, or of possessing the necessary insignif-
icance and pliancy to render them the obsequious instruments of
his pleasure.h
If it be said the} might sometimes gratif) him by an acquiescence

in a favorite choice, when public moti\es might dictate a dif-
ferent conduct, I answer, that ! he usances in which the President
could be personally interested in the result, would be too few to
admit of his being materially affected by the compliances of the
Senate. The power which can ougmatc the disposition of honors
and emoluments, is more likely to attract than to be attra, ted by
the power which can merdv obstruct their course // b~\ influ-
encing t'hc Piesident be meant rcshaining liim, tL': is precisely
-what mu>. )iave I ccn intended [emphasis supplied]. And it has
been shown that tlie restraint would be salutary, at the same time
that it would not be such as to destroy a sinclc advantage to be
looked for from the uncontrolled agency of ti at Magistrate. The
right of nomination would produce all die good of that of ap-
pointment, a\d would in a great measure avoid its evils.9
I cannot see, in these passages, any hint that the Senators mav not or
ought no:, in voting on a nominee, take into account anything that
they, as serious and public-spirited men, think to bear on the wisdom
of the appointment. It i; piedicted, as a mere probabi.ity, that Pres-
idential nominations will not often be "overru'ed." But "special and
strong reasons," thus generally characterized, are to suffice. Is a Sen-
ator's belief that a nominee holds skewed and pu'blind wews on social
ysstice not a ' <=.>ecial and strong reason"? Is it not as 'Vpecial and
strong" as a Senator's belief that an appointment has bee;: n.ide "from
a view to popularity'"a reason which b\ clear implication is to suf-
fice as support for a negative vote? If there is anything in The Fed-
eralist Pupers neutrali?] ig this inference, I iiould be glad to see it.
t THE FEDERAi.m Nc 70, at 494-95 (Modern Library 1937) (Aux.2:ider Hamilton)

9 Id. No 77, ' . 49b (Alexander Hamilton;
662
1013
When we turn to history, the record is as always, confusing and

multifarious. One can say with confidence, ho:\e\cr. that a good many
nominations have been rejected by the Senate for repugnancy of the
nominee's views on great issues, or for mediocrit\. or for other reasons
no more invohing moral turpitude than these. ]eremiah Sullivan
Black, an eminent lav. ver and judge, seems to ha\ e been rejected in
1861 because of His views on slavery and secession.1'1 John J. Crittenden
was refused confirmation in 1829 on strictly partisan giounds. 11 Wol-
cott was rejected parth on political grounds, and partly on grounds
of competence, in 1811.1- There is the celebrated Parker case of this
century.13 The perusal of Warren14 will multiplv instances.
I am \ ery far from undertaking any defense of each of these actions
severally. I am not writing about the wisdom, on the merits, of partic-
ular votes, but of the claim to historical authenticifv of the supposed
"tradition" of the Senators' refraining from taking into account a very
wide range of factors, from which the nominees' views on great public
cues-ions cannot, excerpt arbitrarih. be excluded. Such a "tradition,"
if it exists, exists somev here else ti ,:n in recorded history. Of course,
all these instances ina^ be dismissed as improprieties, but thci one rau^'.
go on and sa) win it :\ improper fin the Senate, an 1 each Senator, 'o
ask hims-jlf, before he \ >tes. every question winch i.rp.\ily bear.- on the
issue whether the nominee's sitting on the Court will be good for the
country.
I submit that this "tradition" is just a part of the twentieth-century
mystique about the Presidency. That imstique, having led us into
disastrous undeclared war, is sureh due for leexamination. I do not
suggest that it can be or should be totally rejected. I am writing here
only about a little part of its consequences.
To me. there is jr.-. no reason at all for a Senator's not voting in
regard to confirmation of a Supreme Co.in nominee, on the basis : a
full and unrestricted review, not embarrassed b\ am presu; iption of
the nominee's fitness for the ofnceiln a world that knows thai a man's
social philosophy shapes his judicial beha\ior, that p'nlosc ;.>hy is a
factor in his fitness. If it is a philosophy the Senator thinks will make
a juf5ge whose service on the Bena, wi 1 hurt the country, then the
10 2 C. WARREN, T H L SUPREME COURT IN L ' M I I U S T \ T I HISTOF-V S'">i (r-\ ed 192G)

11 1 id at '. >i
12. id at 41:;
13. L PFEFFER, T H I S 1 J ONORAML C o i n , A HI^TOFI OF THE I \ITEI> STATES SUPREME
COURT .'?? .'19Gr>,
14 C "\ IRTN, T u r SLI'REMI C O I R I IN UNITED STAI I_- MISTOR\ (rc\ ed ){
663
1014
The Vale Law Journal Vol. 79: 657, 1970
Senator can do right only by treating this judgment of his, unencum-

bered by deference to the President's, as a satisfactory basis in itself for
a negative voteyl have as yet seen nothing textual, nothing structural,
nothing prudential, nothing historical, that tells against this view. Will
someone please enlighten me?
/
1015
OLM^TEAD i. UNITED STATES. 455

43$ Opinion of the Court.
Fifth Amendments as part of the Constitution. Crimi-

nals will not escape detection and conviction merely be-
cause evidence obtained by tapping wires of a public tele-
phone system is inadmissible, if it should be so held; but,
in any event, it is better that a few criminals escape than
that the privacies of life of all the people be exposed to
the agents of the Government, who will act at their own
discretion, the honest and the dishonest, unauthorized
and unrestrained by the courts. Legislation making wire
tapping a crime will not suffice if the courts nevertheless
hold the evidence to be lawful. Writs of assistance might
have been abolished by statute, but the people were wise
to abolish them by the Bill of Rights.
MR. CHIEF JUSTICE TAFT delivered the opinion of the
Court.
These cases are here by certiorari from the Circuit
Court of Appeals for the Ninth Circuit. 19 F. (2d) 842
and 850. The petition in No. 493 was filed August 30,
1927; in Nos. 532 and 533. September 9, 1927. They
were granted with the distinct limitation that the hear-
ing should be conSned to Uie single question whether the
use of evidence of privat' telephone conversations be-
tweer. the defendants and others, intercepted by means
of wii^ tapping, amounted 10 a violation of the Fourth
a. .1 Fifth Amendments.
The petitioners were competed in the District Court
for the Western District of W&^Hngton of a conspiracy
to violate the National Prohibition Act by unlawfully
possessing, transporting and importing intoxicating
liquors and maintaining nuisances, a:id bj- selling ii>
toxicating liquors. Seventy-two others in addition to the
petitioners were indicted. Some were not apprehended,
some were acquitted and others plea ied guilty.
The evidence in the records discloses a conspiracy of
amazing magnitude to import, possess and sell liquor un-
1016
456 OCTOBER TERM, 1927.

Opinion of the Court. ' 277 U.S.
lawfully. It involved the employment of not less than

fifty persons, of two seagoing vessels for the transporta-
tion of liquor to British Columbia, of smaller vessels for
coastwise transportation to the State of Washington, the
purchase and use of a ranch beyond the suburban limits
of Seattle, with a large underground cache for storage
and a number of smaller caches in that city, the main-
tenance of a central office manned with operators, the em-
ployment of executives, salesmen, deliverymen, dispatch-
ers, scouts, bookkeepers, collectors and an attorney. In
a bad month sales amounted to S17G.000; the aggregate
for a year must have exceeded two millions of dollars.
Olmstead was the leading conspirator and the general
manager of the business. He made a contribution of
.$10,000 to the capital; eleven others contributed $1,000
each. The profits were divided one-half to Olmstead and
the remainder to the other eleven. Of the several offices
in Seattle the chief one was in a large office building. In
this there were three telephones on three different lines.
There were telephones in an office o* the manager in his
own home, at the homes of his associates, and at other
p:-ices in the city. Communication was had frequently
with Vancouver. British Columbia. Times were fixed for
the deliveries of die " stuff." to places along Puget
Sound near Seattle and from there rhe liquor was re-
moved and deposited in the caches already referred to.
One of the chief men was always on duty at the main
office to receive orders by telephones and to direct their
filling by a corps of men stationed in anot'ier roomthe
u
b'lll pen." The call numbers of the telephones were
gi":: to those known to be likely customers. At times
the ?:*-.? amounted to 200 cases of liqu-jr per day.
The information which led to the discovery of the
conspiracy and its nature and extent was largely obtained
by intercepting messages on the telephones of the con-
spirato- , by four federal prohibition officers. Small
1017
OLM.<TEAD v. UNITED STATES. 457

43S Opinion of the Court.
wires were inserted along the ordinary telephone wires

from the residences of four of the petitioners and those
leading from the chief office. The insertions were made
without trespass upon any property of the defendants.
They were made in the basement of the large office build-
ing. The taps from house lines were made in the streets
near the houses.
The gathering of evidence continued for many months.
Conversations of the conspirators of which refreshing
stenographic notes were currently made, were testified to
by the government witnesses. They revealed the large
business transactions of the partners and their subor-
dinates. Men at the wires heard the orders given for
liquor by customers and the acceptances; they became
auditors of the conversations between the partners. All
this disclosed the conspiracy charged in the indictment.
Many of the intercepted conversations were not merely
reports but parts of the criminal acts. The evidence also
disclosed the difficulties to which the conspirators were
subjected, the reported news of the capture of-vessels, the
arrest of their men and the seizure of cases of liquor in
garages and other places. It showed the dealing by Olm-
stead, the chief conspirator, with members of the Seattle
police, the messages to them which secured the release of
arrested members of the conspiracy, and also direct prom-
ises to officers of payments as soon as opportunity offered.
The Fourth Amendment provides" The right of the
.people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures shall not
be violated; and no warrants shall issue but upon prob-
able cause, supported by oath or affirmation and par-
ticularly describing the place to be searched and the
persons or things to be seized." And the Fifth: ''No
person . . . shall be compelled, in cny criminal case,
to be a witness against himself."
1018
45S OCTOBER TERM. 1927.

Opinion of the Court. 277 U.S.
It will be helpful to consider the chief cases in this

Court which bear upon the construction of these Amend-
ments.
Boyd v. United States, 116 IT. S. 616, was an informa-
tion filed by the District Attorney in the federal court in
a cause of seizure and forfeiture against thirty-five cases
of plate glass, which charged that the owner and importer,
with intent to defraud the revenue, made an entry of the
imported merchandise by means of a fraudulent or false
invoice. It became important to show the quantity and
value of glass contained in twenty-nine cases previously
imported. The fifth section of the Act of June 22, 1874,
provided that in cases not criminal under the revenue
laws, the United States Attorney, whenever he thought
an invoice, belonging to the defendant, would tend to
prove any allegation made by the United States, might by
a written motion describing the invoice and setting forth
the allegation which he expected to prove, secure a notice
from the court to the defendant to produce the invoice,
and if the defendant refused to produce it, the allegations
stated in the motion should be taken as confessed, but if
produced, the United States Attorney should be permitted,
under the direction of the court, to make an examination
of the invoice, and might offer the same in evidence. This
Act had succeeded the Act of 1SG7, which provided that in
such cases the District Judge, on affidavit of any person
interested, might issue a warrant to the marshal to enter
the premises where the invoice was and take possession of
it and hold it subject to the order of the judge. This had
been preceded by the Act of 1863 of a similar tenor, except
that it directed the warrant to the collector instead of the
marshal. The United States Attorney followed the Act
of 1874 and compelled the production of the invoice.
Tiie court held the Act of 1S74 repugnant to the Fourth
and Fifth Amendments. As to the Fourth Amendment,
Justice Bradley said (page 621):
1019
OLMSTEAD v. UNITED STATES. 459

" But, in regard to the Fourth Amendment, it is con-

tended that, whatever might have been alleged against the
constitutionality of the acts of 1863 and 1867, that of 1874,
under which the order in the present case was made, is free
from constitutionaLobjection because it does not authorize
the search and seizure of books and papers, but only re-
quires the defendant or claimant to produce them. That
is so; but it declares that if he does not produce them, the
allegations which it is affirmed they will prove shall be
taken as confessed. This is tantamount to compelling
their production; for the prosecuting attorne)r will always
be sure to state the evidence expected to be derived from
them as strongly as the case will admit of. It is true that
certain aggravating incidents of actual search and seizure,
such as forcible entry into a man's house and searching
amongst his papers, are wanting, and to this extent the
proceeding under the Act of 1874 is a mitigation of that
which was authorized by the former acts; but it. accom-
plishes the substantial object of those acts in forcing from
a part%y evidence against himself. It is our opinion, there-
fore, that a compulsory production of a man's private
papers to establish a criminal charge against him, or to
forfeit his property, is within the scope of the Fourth
Amendment to the Constitution, in all cases in which a
search and seizure would be; because it is a material in-
gredient, and effects the sole object and purpose of search
and seizure."
Concurring, .ir. Justice Miller and Chief Justice Waite
said that they did not think the machinery used to get
this evidence amounted to a search and seizure, but they
agreed that the Fifth Amendment had been violated.
The statute provided an official demand for the pro-
duction of a paper or document b}* the defendant for offi-
cial search and use as evidence on penalty that by refusal
he should be conclusively held to admit the incriminat-
1020
460 OCTOBER TERM. 1927.

Opinion of the Court. 277U.S.
ing character of the document as charged. It was cer-

tainly no straining of the language to construe the search
and seizure under the Fourth Amendment to include such
official procedure.
The next case, and perhaps the most important, is
Weeks v. United States, 232 U. S. 3S3,a conviction for
using the mails to transmit coupons or tickets in a lottery
enterprise. The defendant was arrested by a police offi-
cer without a warrant. After his arrest other police
officers and the United States marshal went to his house,
got the key from a neighbor, entered the defendant's room
and searched it, and took possession of various papers and
articles. Neither the marshal nor the police officers had
a search warrant. The defendant filed a petition in court
asking the return of all hi? property. The court ordered
the return of everything not pertinent to the charge, but
denied return of relevant evidence. After the jury was
sworn, the defendant again made objection, and on intro-
duction of the papers contended that the search without
warrant was a violation of the Fourth and Fifth Amend-
ments and thej^ were therefore inadmissible. This court
held that such taking of papers by an official of the United
States, acting under color of his office, was in violation
of the constitutional rights of the defendant, and upon
making seasonable application he was entitled to have
them restored, and that by permitting their use upon the
trial, the trial court erred.
The opinion cited with approval language of Mr. Jus-
tice Field in Ex parte Jackson, 96 U. S. 727, 733, saying
that the Fourth Amendment as a principle of protection
was applicable to sealed letters and packages in the mail
and that, consistently with it, such matter could only be
opened and examined upon warrants issued on oath or
affirmation particularly describing the thing to be seized.
In Silverthome Luviher Company v. United States, 251
U. S. 385, the defendants were arrested at their homes and
1021

detained in custody. While so detained, representatives

of the Government without authority went to the office
of their company and seized all the books, papers and
documents found there. An application for return of the
things was opposed by the District Attorney, who pro-
duced a subpoena for certain documents relating to the
charge in the indictment then on file. The court said:
" Thus the case is not that of knowledge acquired
through the wrongful act of a stranger, but it must be
assumed that the Government planned or at all events
ratified the whole performance."
And it held that the illegal character of the original
seizure characterized the entire proceeding and under the
Weeks case the seized papers must be restored.
In A??w? v. United States, 255 U. S. 313. the defendant
was convicted of concealing whiskey on which the tax had
not been paid. At the trial he presented a petition ask-
ing that private property seized in a search of his house
and store " within his curtilage." without warrant should
be returned. This was denied. A woman, who claimed
to be his wife, was told by the revenue officers that they
had come to search the premises for violation of the reve-
nue law. She opened the door; they entered and found
whiskey. Further searches in the house disclosed more.
It was held that this action constituted a violation of the
Fourth Amendment, and that the denial of the motion to
restore the whiskey and to exclude the testimony was
error.
In Gouled v. The United States, 255 U. S. 298, the facts
were these: Gouled and two others were charged with
conspiracy to defraud the United States. One pleaded
guilty and another was acquitted. Gouled prosecuted
error. The matter was presented h r *e on questions pro-
pounded by the lower court. The first related to the ad-
mission in evidence of a paper surreptitiously taken from
the office of the defendant by one acting under the direc-
1022

tion of an officer of the Intelligence Department of the

Army of the United States. Gouled was suspected of the
crime. A private in the U. S. Army, pretending to make
a friendly call on him, gained admission to his office and
in his absence, without warrant of any character, seized
and carried away several documents. One of these be-
longing to Gouled, was delivered to the United States
Attorney and by him introduced in evidence. When pro-
duced, it was a surprise to the defendant. He had had
no opportunity to make a previous motion to secure a
return of it. The paper had no pecuniary value, but
was relevant to the issue made on the trial. Admission
of the paper was considered a violation of the Fourth
Amendment.
Agnello v. United States, 269 U. S. 20, held that the
Fourth and Fifth Amendments were violated by admis-
sion in evidence of contraband narcotics found in de-
fendant's house, several blocks distant from the place
of arrest, after his arrest, and seized there without a war-
rant. Under such circumstances the seizure could not
be justified as incidental to the arrest.
There is no room in the present case for applying the
Fifth Amendment unless the Fourth Amendment was
first violated. There was no evidence of compulsion to
iruvce the defendants to talk over their many telephones.
They were continually and voluntarily trai ^.acting busi-
ness without knowledge of the interception. Our consid-
eration must be confined to the Fourth Amendment.
The striking outcome of the Weekc case a.nd those
which followed it was the sweeping declaration that the
Fourth Amendment, although not referring to or limiting
the use of evidence in courts, really forbade its introduc-
tion if obtained by government officers through a viola-
tion of the Amendment. Theretofore many had supposed
that under the ordinary common law rules, if the tendered
evidence was pertinent, the method of obtaining it was
1023

unimportant. This was held by the Supreme Judicial

Court of Massachusetts in Commonwealth v. Dana, 2
Metcalf, 329, 337. There it was ruled that the only
remedy open to a defendant whose rights under a1 state
constitutional equivalent of the Fourth Amendment had
been invaded was by suit and judgment for damages, as
Lord Camden held in Entick v. Carrington, 19 Howell
State Trials, 1029. Mr. Justice Bradley made effective
use of this case in Boyd v. United States. But in the
Weeks case, and those which followed, this Court decided
with great emphasis, and established as the law for the
federal courts, that the protection of the Fourth Amend-
ment would be much impaired unless it was held that
not only was the official violator of the rights under the
Amendment subject to action at the suit of the injured
defendant, but also that the evidence thereby obtained
could not be received.
The well known historical purpose of the Fourth
Amendment, directed against general warrants and writs
of assistance, was to prevent the use of governmental
force to search a man's house, his person, his papers and
his effects; and to prevent their seizure against his will.
This phase of thr misuse of governmental power of com-
pulsion is the emphasis of the opinion of the Court, in the
Boyd case. This appears too in the Weeks case, in the
SUverthorne case and in the Amos case.
Gouled v. United States carried the inhibition against
unreasonable searches and seizures to the extreme limit.
Its authority is not to be enlarged by implication and
must be confined to the precise state of facts disclosed by
the record. A representative of the Intelligence Depart-
ment of the Army, having by stealth obtained admission
to the defendant's office, seized and carried away certain
private papers valuable for evidential purposes. This
was held an unreasonable search and seizure within the
Fourth Amendment. A stealthy entrance in such cir-
1024

cumstances became the equivalent to an entry by force.

There was actual entrance into the private quarters of
defendant and the taking away of something tangible.
Here we have testimony only of voluntary conversations
secretly overheard.
The Amendment itself shows that the search is to be of
material thingsthe person, the house, his papers or his
effects. The description of the warrant necessary to
make the proceeding lawful, is that it must specify the
place to be searched and the person or things to be seized.
It is urged that the language of Mr. Justice Field in
Ex parte Jackson, already quoted, offers an analogy to
the interpretation of the Fourth Amendment in respect
of wire tapping. But the analog}- fails. The Fourth
Amendment may have proper application to a sealed let-
ter in the mail because of the constitutional provision for
the Post office Department and the relations between the
Government and those who pay to secure protection of
their sealed letters. See Revised Statutes, 3978
to 398S; whereby Congress monopolizes the carriage of
letters and excludes from that business everyone else,
and 3929 which forbids any postmaster or other
pert on to open any letter not addressed to himself. It is
plainly within the words of the Amendment to say that
the unlawful rifling by a government agent of a sealed
letter is a search and seizure of the sender's papers or
effects. The letter is a paper, an effect, and in the cus-
tody of a Government that forbids carriage except under
its protection.
The United Slates takes no such care of telegraph or
telephone messages as of mailed sealed letters. The
Amendment does ixot forbid what was done here. There
was no searching. There was no seizure. The evidence
was secured by the use of the sense of hearing and that
only. There was no entry of the houses or offices of the
defendants.
1025

By the invention of the telephone, fifty years ago,

and its application for the purpose of extending communi-
cations, one can talk with another at a far distant place.
The language of the Amendment can not be extended
and expanded to include telephone wires reaching to the
whole world from the defendant's house or office. The
intervening wires are not part of his house or office any
more than are the highways along which they are
stretched.
This Court in Carroll v. United States, 267 U. S. 132,
149, declared:
"The Fourth Amendment is to be construed in the
light of what was deemed an unreasonable search and
seizure when it was adopted and in a manner which will
conserve public interests as well as the interests and rights
of individual citizens."
Justice Bradley in the Boyd case, and Justice Clark in
the Gouled case, said that the Fifth Amendment and the
Fourth Amendment were to be liberally construed to effect
the purpose of the framers of the Constitution in the in-
terest of liberty. But that can not justify enlargement
of the language empKyed beyond the possible practical
meaning of houses, persons, papers, and effects, or so to
apply the words search and seizure as to forbid hearing or
sight.
Hester v. United States, 265 U. S. 57, held that the tes-
timony of two officers of the law who trespassed on the
defendant's land, concealed themselves one hundred yards
away from his house and saw him come out and hand a
bottle of whiskey to another, was not inadmissible. While
there was a trespass, there was no search of person, house,
papers or effects. United States v. Lee, 274 U. 5r)9,
563; Eversole v. State, 100 Tex. Cr. 567.
Congress nia.y c: course protect the secrecy of telephone
messages by making them, when intercepted, inadmissible
in evidence in feden I criminal trials, by direct legislation,
596329 30
1026

and thus depart from the common law of evidence. But

the courts may not adopt such a policy by attributing an
enlarged and unusual meaning to the Fourth Amendment.
The reasonable view is that one who installs in his house
a telephone instrument with connecting wires intends to
project his voice to those quite outside, and that the wires
beyond his house and messages while passing over them
are not within the protection of the Fourth Amendment.
Here those who intercepted the projected voices were not
in the house of either party to the conversation.
Neither the cases we have cited nor any of the many
federal decisions brought to our attention hold the Fourth
Amendment to have been violated as against a defendant
unless there has been an official search and seizure of his
person, or such a seizure of his papers or his tangible ma-
terial effects, or an actual physical invasion of his house
" or curtilage " for the purpose of making a seizure.
We think, therefore, that the wire tapping here dis-
closed did not amount to a search or seizure within the
meaning of the Fourth Amendment.
What has been said disposes of the only question that
comes within the terms of our order granting certiorari in
these cases. But some of our number, departing from
that order, have concluded that there is merit in the two-
fold objection overruled in both courts below that evi-
dence obtained through intercepting of telephone mes-
sages by government agents was inadmissible because the
mode of obtaining it was unethical and a misdemeanor
under the law of Washington. To avoid any misappre-
hension of our views of that objection we shall deal with
it in both of its phases.
While a Territory, the English common law prevailed
in Washington and thus continued after her admission in
1889. The rules of evidence in criminal cases in courts
of the United States sitting there, consequently are those
of the common law. United States v. Reid, 12 How. 361,
1027

438 Opinion of the Court.
363, 366; Logan v. United States, 144 U. S. 263, 301;

Rosen v. United States, 245 U. S. 467; Withaup v. United
States, 127 Fed. 530, 534; Robinson v. United States, 292
Fed. 683, 685.
The common law rule is that the admissibility of evi-
dence is not affected by the illegality of the means by
which it was obtained. Professor Greenleaf in his work
on evidence, vol. 1, 12th ed., by Redfield, 254(a) says:
" It may be mentioned in this place, that though papers
and other subjects of evidence may have been illegally
taken from the possession of the party against whom they
are offered, or otherwise unlawfully obtained, this is no
valid objection to their admissibility, if they are pertinent
to the issue. The court will not take notice how they
were obtained, whether lawfully or unlawfully, nor will it
form an issue, to determine that question."
Mr. Jones in his work on the same subject refers to Mr.
Greenleafs statement, and says:
" Where there is no violation of a constitutional guar-
anty, the verity of the above statement is absolute."
Vol. 5, {? 2075, note 3.
The rule is supported by many English and American
cases cited by Jones in vol. 5, 2075, note 3, and 2076,
note 6; and bjr Wigmore, vol. 4. 2183. It is recog-
nized by this Court in Adams v. New York, 192 U. S.
585. The Weeks case, announced an exception to the
common law rule by excluding all evidence in the pro-
curing of which government officials took part by methods
forbidden by the Fourth and Fifth Amendments. Many
state courts do not follow the Weeks case. People
v. Dejore, 242 N. Y. 13. But those who do, treat it as an
exception to the general common law rule and required
by constitutional limitations. Hughes v. Stoic, 145 Tenn.
544, 551, 566; State v. Wills, 91 W. Va. 659, 677; State Y.
Slamon. 73 Vt, 212. 214, 215: Gindrat v. People, 13* 111.
103, 111; People v. Cat-tree, 311 HI. 392, 396, 397; State v.
1028
468 OCTOBER TERM. 11)27.

Gardner, 77 Mont. 8, 21; State v. Fahn, 53 N. Dak. 203,

210. The common law rule must apply in the case at bar.
Nor can we, without the sanction of congressional en-
actment, subscribe to the suggestion that the courts have
a discretion to exclude evidence, the admission of which is
not unconstitutional, because unethically secured. This
would be at variance with the common law doctrine gen-
erally supported by authority. There is no case that sus-
tains, nor any recognized text book that gives color to such
a view. Our general experience shows that much evi-
dence has always been receivable although not obtained
by conformity to the highest ethics. The history of crim-
inal trials shows numerous cases of prosecutions of oath-
bound conspiracies for murder, robbery, and other crimes,
where officers of the law have disguised themselves and
joined the organizations, taken the oaths and given them-
selves every appearance of active members engaged in
the promotion of crime, for the purpose of securing evi-
dence. Evidence secured by such means has always been
received.
A standard which would forbid the reception of evi-
dence if obtained by other than nice ethical conduct by
government officials would make society suffer and give
criminals greater immunity than has been known here-
tofore. In the absence ." controlling legislation by Con-
gress, those who realize the difficulties in bringing of-
fenders to justice may wrell deem it wise that the exclu-
sion of evidence should be confined to cases where
rights under the Constitution would be violated by ad-
mitting it.
The statute of Washington, adopted in 1909, provides
(Remington Compiled Statutes, 1922, 2556-18) that:
"Every person . . . who shall intercept, read or
in any manner interrupt or delay the sending of a mes-
sage over any telegraph or telephone line . . . shall
be guilty of a misdemeanor."
1029

43S HOLMES, J., dissenting.
This statute does not declare that evidence obtained

by such interception shall be inadmissible, and by the
common law, already referred to, it would not be. People
v. McDonald, 177 App. Div. (N. Y.) 806. Whether the
State of Washington ma}' prosecute and punish federal
officers violating this law and those whose messages were
intercepted may sue them civilly is not before us. But
clearly a statute, passed twenty years after the admission
of the State into the Union can not affect the rules of
evidence applicable in courts of the United States in crim-
inal cases. Chief Justice Taney, in United States v. Reid,
12 How. 361, 363, construing the 34th section of the
Judiciary Act, said:
" But it could not be supposed, without very plain
words to show it, that Congress intended to give the states
the power of prescribing the rules of evidence in trials for
offenses against the United States. For this construction
would place the criminal jurisprudence of one sovereignty
under the control of another." See also Withaup v.
United Stairs, 127 Fed. 530, 53 ..
The judgments of the Circuit Court of Appeals are
affirmed. The mandates will go down forthwith under
Rule 31.
Affirmed.
MR. JUSTICE HOLMES:
My brother BRANDEIS has given this case so exhaustive

an examination that I desire to add but a few words.
While I do not deny it, I am not prepared to say that the
penumbra of the Fourth and Fifih Amendments covers
the defendant, although I fully agree that Courts are apt
to err by sticking too closely to the words of a lav* where
those words import a policy that goes beyond them.
Gooch v. Oregon Short Line R. R. Co.. 258 U. S. 22, 24.
But I think, as MR. JUSTICE BRANDEIS says, that apart
from the Constitution the Government ought not to use
1030

HOLMES, .T., dissenting. 277 U.S.
evidence obtained and only obtainable by a criminal act.

There is no body of precedents by which we are bound,
and which confines us to logical deduction from established
rules. Therefore we must consider the two objects of de-
sire, both of which we cannot have, and make up our minds
which to choose. It is desirable that criminals should be
detected, and to that end that all available evidence should
be used. It also is desirable that the Government should
not itself foster and pay for other crimes, when they are
the means by which the evidence is to be obtained. If it
pays its officers for having got evidence by crime I do not
see why it may not as well pay them for getting it in the
same way. and I nan attach no importance to protestations
of disapproval if it knowingly accepts and pays and an-
nounces that in future it will pay for the fruits. We have
to choose, and for my part I think it a less evil that some
criminals should escape than that the Government should
play an ignoble part.
For those who agree with me. no distinction can be taken
between the Government as prosecutor and the Govern-
ment as judge. If the existing code does not permit dis-
trict attorneys to have a hand in such dirty business it
does not permit the i jdge to allow such iniquities to suc-
ceed. Se- Silverthorne Lumber Co. v. United States, 251
LT. S. 3S5. And if all that I have said so far- be accepted
it makes no difference that in this ca.se wire tapping is
made a crime by the law of th*? State, not by the law of
the United States. It is true that a State cannot make
rules of evidence for Courts of the United States, but the
State ha= authority over the conduct in question, and
I hardly think that the- United Slates would appear to
greater advantage when paying for an odious crime against
State law than when inciting to the disregard of its own.
I am av,-are of the often repeated statement that in a
criminal proceeding the Court will not take notice of the
manner in which papers offered in evidence have been
1031

43S BRAXDEIS, J., dissenting.
obtained. But that somewhat rudimentary mode of dis-

posing of the question has been overthrown by Weeks
v. United States, 232 U. S. 383 and the cases that have
followed it. I have said that we are free to choose between
two principles of policy. But if we are to confine our-
selves to precedent and logic the reason for excluding evi-
dence obtained by violating the Constitution seems to me
logically to lead to excluding evidence obtained by a
crime of the officers of the law.
MR. JUSTICE BRANDEIS, dissenting.
The defendants were convicted of conspiring to violate
the National Prohibition Act. Before any of the persons
now charged had been arrested or indicted, the telephones
by means of which they habitually communicated with
one another and with others had been tapped by federal
officers. To this end, a lineman of long experience in
wire-tapping was employed, on behalf of the Government
and at its expense. He tapped eight telephones, some in
the homes of the persons charged, some in their offices.
Actinr on behalf of the Government and in their official
capacity, at least six other prohibition agents listened over
the tapped v.-jres and reported the messages taken. Their
operations extended over a period of nearly five months.
The type-written record (1 the notes of conversations
ovc ":eard occupies 775 t3*pewritten pages. By objections
seasonably made and persistentry renewed, the defend-
ants objected to the admission of the evidence obtained
by wire-tapping, on the ground that the Government's
wire-tapping constituted an unreasonable search and sei-
zure, in violation of the Fourth Amendment; and that
the use as evidence of the conversations overheard com-
pelled the defendants 'o be witnesses against themselves,
in violation of the Fifth Amendment.
The Government makes IJ attempt to defend the
methods employed by its officers. Indeed, it concedes
1032

BRANDEIS, J., dissenting. 277 U.S.
that if wire-tapping can be deemed a search and seizure

within the fourth Amendment, such wrire-tapping as was
practiced in the case at bar was an unreasonable search
and seizure, and that the evidence thus obtained was in-
admissible. But it relies on the language of the Amend-
ment; and it claims that the protection given thereby
cannot properly be held to include a telephone conver-
sation.
" We must never forget," said Mr. Chief Justice Mar-
shall in McCulloch v. Maryland, 4 Wheat. 316, 407, " that
it is a constitution we are expounding." Since then, this
Court has repeatedly sustained the exercise of power by
Congress, under various clauses of that instrument, over
objects of which the Fathers could not have dreamed.
See Pensacola Telegraph Co. v. Western Union Telegraph
Co., 96 17. S. 1, 9; Northern Pacific Ry. Co. v. North
Dakota, 250 U. S. 135; Dakota Central Telephone Co. v.
South Dakota, 250 U. S. 1G3; Brooks v. United States,
267 U. S. 432. We have likewise held that general limi-
tations on the powers of Government, like those embod-
ied in the due process clauses of the Fifth and Fourteenth
Amendments, do not forbid the United States or the
States from meeting modern conditions by regulations
which " a century ago, or even half a century ago, prob-
ably would have been rejected as arbitrary and oppres-
sive." Village oj Euclid v. Ambler Realty Co., 272 IT. S.
365, 387; Buck v. Bell, 274 U. S. 200. Clauses guaran-
teeing to the individual protection against specific abuses
of power, must have a similar capacity of adaptation to a
changing world. It was with reference to such a clause
that this Court said in Weems v. United States, 217 IT. S.
349, 373: "Legislation, both statutory and constitu-
tional, is enacted, it is true, from an experience of evils,
but its general language should not, therefore, be neces-
sarily confined to the form that evil had theretofore taken.
Time works changes, brings into existence new conditions
1033

and purposes. Therefore a principle to be vital must be

capable of wider application than the mischief which gave
it birth. This is peculiarly true of constitutions. They
are not ephemeral enactments, designed to meet passing
occasions. They are, to use the words of Chief Justice
Marshall ' designed to approach immortality as nearly as
human institutions can approach it.' The future is their
care and provision for events of good and bad tenden-
cies of which no prophecy can be made. In the applica-
tion of a constitution, therefore, our contemplation can-
not be only of what has been but of what may be. Un-
der any other rule a constitution would indeed be as easy
of application as it would be deficient in efficacy and
power. Its general principles would have little value and
be converted by precedent into impotent and lifeless for-
mulas. Rights declared in words might be lost in reality."
When the Fourth and Fifth Amendments were adopted,
" the form that evil had theretofore taken/' had been
necessarily simple. Force and violence were then the
only means known to man by which a Government could
directly effect self-in crimination. It. could compel the
individual to testifya compulsion effectc 1, if need be,
by tortuie. It could secure possession of his papers and
other articles incident tc his private lifea seizure ef-
fected, if need be, by breaidng and entry. Protection
against such invasion of " the sa^.tities of a man's home
and the privacies of life " was provided in the Fourth and
Fifth Amendments by specific language. Boyd v. United
States, 116 U. S. 616. 630. But "time works changes,
brings into existence new conditions a.nd purposes."
Subtler and more far-reaching means of invading privacy
have become available to the Government. Discovery
and invention have made it possible for the Government,
by means far more effective than stretching upon the
rack, to obtain disclosure in court of what is whispered
in the closet.
1034

BRANDEIE, J., dissenting. 277 U.S.
Moreover, " in the application of a constitution, our

contemplation cannot be only of wThat has been but of
what may be." The progress of science in furnishing
the Government with means of espionage is not likely
to stop with wire-tapping. Ways may some day be
developed by which the Government, without removing
papers from secret drawers, can reproduce them in court,
and by which it will be enabled to expose to a jury the
most intimate occurrences of the home. Advances in the
psychic and related sciences may bring means of explor-
ing unexpressed beliefs, thoughts and emotions. " That
places the liberty of every man in the hands of every
petty officer " was said by James Otis of much lesser
intrusions than these.1 To Lord Camden, a far slighter
intrusion seemed " subversive of all the comforts of so-
ciety." - Can it be that the Constitution affords no pro-
tection against such invasions of individual security?
A sufficient answer is found in Boyd v. United States,
116 U. S. 616, 627-630, a case that will be remembered as
long as civil liberty lives in the United States. This
Court there reviewed the history that lay behind the
Fourth and Fifth Amendments. We said with reference
to Lord Camden's judgment in Entick v. Carrington, 19
Howell's State Trials, 1030: "The principles laid down
in this opinion affect the very essence of constitutional
liberty and security. They reach farther than the con-
crete form of the case there before the court, writh its
adventitious circumstances; they apply to all invasions
on the part of the Government and its employes of the
sanctities of a man's home and the privacies of life. It
is not the breaking of his doors, and *the rummaging of his
drawers, that constitutes the essence of the offence; but it
is the invasion of his indefeasible right of personal se-
1
Otis' Argument against Writs of Assistance. See Tudor, James
Otis, p. 66; John Adams, Works, Vol. II, p. 524; Minot, Continuation
of the History of Massachusetts Bay, Vol. II, p. 95.
2
Entick v. Carrington, 19 Howell's State Trials, 1030, 1066.
1035

438 BRANDEIE. J.. dissenting
curity, personal liberty and private property, where that

right has never been forfeited by his conviction of some
public offence,it is the invasion of this sacred right
which underlies and constitutes the essence of Lord
Camden's judgment. Breaking into a house and opening
boxes and drawers are circumstances of aggravation; but
any forcible and compulsory extortion of a man's own
testimony or of his private papers to be used as evidence
of a crime or to forfeit his goods, is within the con-
demnation of that judgment. In this regard the Fourth
and Fifth Amendments run almost into each other." f
In Ex parte Jackson, 96 U. S. 727. it was held that a
sealed letter entrusted to the mail is protected by the
Amendments. The mail is a public service furnished by
the Government. The telephone is a public service fur-
nished by its authority. There is. in essence, no differ-
ence between the sealed letter and the private telephone
message. As Judge Rudkin said below: " True the one is
visible, the other invisible; the one is tangible, the other
intangible; the one is sealed and the other unsealed, b\ t
these are distinctions without a difference." The evil
incident to invasion of the privacy of th-j telephone is fai
greater than that involved in tampering with the mails.
Whenever a telephone line is tapped, the privacy of the
persons at both ends of the line is invaded and al] c-on-
3
ID Interstate Commerc-c Commission v. Brimson, 154 U. S. 447,
479, the statement made IT. the Boyd case was repeated; and the
Court quoted the statement of Mr. Justice Field in In re Pacific
Railway Commission, 32 Fed. 241, 250:" Of all the rights of the citi-
zen, few are of greater importance or more essential to his peace and
happiness than the right of personal security, and that involves, not
merely protection of his person from assault, but exemption of hi=
private affairs, book1, and prpers. from the inspection and scrutiny
of others. Without the enjoyment of tins right, all others would lose
half their value." The Boyd case has been recently reaffirmed in
Silverthorne Lumber Co. v. United States, 251 IT. S. 3S5, in GouLed v.
United States, 255 U. S. 29S, and in Byars v. United States, 273
U. S. 2S.
1036

BKAXDEIS, J., dissenting. 277 XJ.B
versations between them upon any subject, and although'*

proper, confidential and privileged, may be overhear&f.
Moreover, the tapping of one man's telephone line i n -
volves the tapping of the telephone of every other person
whom he may call or who may call him. As a means"
of espionage, writs of assistance and general warrants are
but puny instruments of tyranny and oppression when
compared with wire-tapping.
Time and again, this Court in giving effect to the prin-
ciple underlying the Fourth Amendment, has refused to
place an unduly literal construction upon it. This was
notably illustrated in the Boyd case itself. Taking lan-
guage in its ordinary meaning, there is no " search " or
" seizure" when a defendant is required to produce a
document in the orderly process of a court's procedure.
"The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures," would not be violated, under any ordinary
construction of language, by compelling obedience to a
subpoena. But this Court holds the evidence inadmis-
sible simply because the information leading to the issue
of the subpoena has been unlawfully secured. Silver-
thornc Lumber Co. v. United States, 251 U. S. 385. Liter-
ali}\ there is no " search " or " seizure " when a friendly
visitor abstracts papers from an office; yet we held in
Gouled v. United States, 255 XJ. S. _9S, that evidence so
obtained could not be used. No court which looked at
the vords of the Amendment rather than at its under-
lying purpose would hold, as this Court did in Ex parte
Jackson, 96 U. S. 727, 733, that its protection extended to
letters in the mails. The prov'sion against self-incrimi-
nation in the Fifth Amendment has been given an equally
broad construction. The language is: "No person . . .
shall be compelled in any criminal case to be a witness
against himself." Yet we have held, not only that the
1037

43S BKANDEIS, J., dissenting.
protection of the Amendment extends to a witness before

a grand jury', although he has not been charged with
crime, Counselman v. Hitchcock, 142 U. S. 547, 562, 586.
but that: " It applies alike to civil and criminal proceed-
ings, wherever the answer might tend to subject to crimi-
nal responsibility him who gives it. The privilege pro-
tects a mere witness as fully as it does one who is also a
party defendant." McCarthy v. Arndstein, 266 U. S. 34,
40. The narrow language of the Amendment has been
consistently construed in the light of its object, "to insure
that a person should not be compelled, when acting as a
witness in any investigation, to give testimony which
might tend to show 4;hat he himself had committed a
crime. The privilege is limited to criminal matters, but
it is as broad as the mischief against which it seeks to
guard." Counselman v. Hitchcock, supra, p. 562.
Decisions of this Court applying the principle of the
Boyd case have settled these things. Unjustified search
and seizure violates the Fourth Amendment, whatever the
character of the paper; * whether the paper when taken
by the federal officers was in the home,5 in an office6 or
elsewhere;7 whether the taking was effected by force,8 by
* Govled v. United States, 255 U. S. 298.
5
Weeks v. United States, 232 U. S. 383; Amos v. United States,
255 U. S. 313; Agnello v. United States, 269 U. S. 20; Byars v. United
States, 273 U. S. 28.
*Boyd v. United States, 116 U. S. 616; Hale v. Henkel, 201 LT. S.
43, 70; Silverthorne Lumber Co. v. United States, 251 U. S. 385;
Govled v. United States, 255 U. S. 298; Marron v. United States, 275
U. S. 192.
7
Ex parte Jackson. 96 U. S. 727, 733: Carroll v. United States, 267
U. S. 132, 156; Gambino v. United States, 275 U. S. 310.
s
Weelcs v. United States. 232 U. S. 383; Silverthorne Lumber Co.
v. United States, 251 U. S. 385; Amos v. United States, 255 U. S.
313; Carroll v. United States, 267 U. S. 132, 156; AgncVio v. United
States, 269 U. S. 20; Gambino v. United States, Tib U. S. 310.
86-97^ 0-89-35
1038

BRANDEIS. J., dissenting. 277 U.S
fraud,* or in the orderly process of a court's procedure.10

From these decisions, it follows necessarily that the
Amendment is violated by the officer's reading the paper
without a physical seizure, without his even touching it-
and that use, in any criminal proceeding, of the contents
of the paper so examinedas where they are testified to
by a federal officer who thus saw the document or where,
through knowledge so obtained, a copy has been procured
elsewhere11any such use constitutes a violation of the
Fifth Amendment.
The protection guaranteed by the Amendments is much
broader in scope. The makers of our Constitution under-
took to secure conditions favorable to the pursuit of happi-
ness. They recognized the significance of man's spiritual
nature, of his feelings and of his intellect. They knew
that only a part of the pain, pleasure and satisfactions
of life are to be found in material things. They sought
to protect Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as against
the Government, the right to be let alonethe most com-
prehensive of rights and the right most valued by civilized
men. To protect that right, every unjus'.'Sable intrusion
by the Government upon the privacy of the individual,
whatever the means employed, must be deemed a viola-
tion of the Fourth Amendment. And the use. as evidence
11
Goulcd v. United States, 255 I" S. 295.
Boyd v. United States, 116 Z. S. 616; Hale v. Henkel, 201 U. S.
43, 70. See Govled v. United States, 255 U. S. 29S; Byars v. United
States, 273 U S. 28; Marron v. United States, 275 U. S. 192.
11
SUverthorne Lumber Co. v. United States, 251 U. S. 3S5. Com-
pare Gouled v. United States, 255 U. S. 298, S07. In Stroud v. United
States, 251 IT. S. 15, and Hester v. United States, 265 U. S. 57, the
letter and articles admitted were not obtained by unlawful search
and seizure. They were voluntary dislo=ures by the defendant.
Compare Smith v. United States, 2 F. (2dj 715; United States v. Lee,
274 U. S. 559.
1039

438 BRANDEIS, J., dissenting.
in a criminal proceeding, of facts ascertained by such in-

trusion must be deemed a violation of the Fifth.
Applying to the Fourth and Fifth Amendments the
established rule of construction, the defendants' objections
to the evidence obtained by wire-tapping must, in my
opinion, be sustained. It is, of course, immaterial where
the physical connection with the telephone wires leading
into the defendants' premises was made. And it is also
immaterial that the intrusion was in aid of law enforce-
ment. Experience should teach us to be most on our
guard to protect liberty when the Government's purposes
are beneficent. Men born to freeaom are naturally alert
to repel invasion of their liberty by evil-minded rulers.
The greatest dangers to liberty lurk in insidious encroach- /
ment by men of zeal, well-meaning but without under-^
.standing.11
Independently of the constitutional question, I am of
opinion that the judgment should be reversed. By the
laws of Washington, wire-tapping is a crime.13 Pierce's
12
The point is thus stated by counsel for the telephone companies,
who have filed a brief as amid citriae: " Criminals wiU not escape de-
tection and conviction merely because evidence obtained by tapping
wires of a public telephone system is inadmissible, if it should be so
held; but, in any event, it is better that a few crimin:us escape than
that the privacies of ;le of all the people be exposed to the agents of
the government, who will act at their own discretion, the honest and
the dishonest, unauthorized and unrestrained by the courts. Legisla-
tion making wire tapping a crime will not suffice if the courts never-
theless hold the evidence to be lawful."
1S
In the following states it i? a criminal offense to intercept a mes-
sage sent by telegraph and or telephone: Alabama, Code, 1923,
5256: Arizona, Revised Statutes, 1913, Penal Code, 692; Arkan-
sas, Crawford & Moses Digest, 1921, 10246; California, Deering's
Penal Code, 1927, 640; Colorado, Compiled Laws, 1921, 6969;
Connecticut, General Statutes, 1918, 6292; Idaho, Compiled Stat-
utes, 1919, 8574, 85S6; Illinois, Revised Statutes, 1927, c. 134, 21;
Iowa, Code, 1927, 13121; Kansas, Revised Statutes, 1923, c. 17,
1908; Michigan, Compiled Laws, 1915, 15403; Montana, Penal
1040

BRANDEIS, J., dissenting. 27? U.g,
Code, 1921, | 8976(18). To prove its case, the Govern-

ment was obliged to lay bare the crimes committed by
its officers on its behalf. A federal court should not per-
mit such a prosecution to continue. Compare Hark'm v.
Brundage, 276 U. S. 36, id. 604.
Code, 1921, 11518; Nebraska, Compiled Statutes, 1922, 7115;
Nevada, Revised Laws, 1912, 460S, 6572(18); New York, Consoli-
dated Laws, c. 40, 1423(6); North Dakota, Compiled Laws, 1913?
10231; Ohio, Page's General Code, 1926, 13402; Oklahoma, Session
Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, 2265; South Dakota,
Revised Code, 1919, 4312; Tennessee, Shannon's Code, 1919, 1831) |
1840; Utah, Compiled Laws, 1917, 8433; Virginia, Code. 1924*
4477(2), (3); Washington, Pierce's Code, 1921, 8976(18); Wis-
consin, Statutes, 1927, 348.37; Wyoming, Compiled Statures. 1920,
7148. Compare State v. Behringer, 19 Ariz. 502; State v. Nordskog,
76 Wash. 472.
In the following states it is a criminal offense for a company en-
gaged in the transmission of messages by telegraph and/or telephone,
or its employees, or, in many instances, persons conniving with them,
to disclose or to assist in the disclosure of any message: Alabama,
Code, 1923, 5543, 5545; Arizona, Revised Statutes, 1913, Penal
Code, 621, 623, 691; Arkansas, Crawford & Mopes Digest, 1921,
10250; California, Deering's Penal Code, 1927, 619, 621, 639,
641; Colorado, Compiled Laws, 1921, 6966. 696S, 6970; Connecti-
cut, General Statutes, 1918, 6292; Florida, Revised General Statutes,
1920, | 5754, 5755; Idaho, Compiled Statutes, 1919, 8568, 8370;
Illinois, Revised Statutes, 1927, c. 134, 7, 7a; Indiana, Burns' Re-
vised Statutes, 1926, 2862; Iowa, Code, 1024, 8305; Louisiana,
Acts, 1918, c. 134, p. 22S; Maine, Revised Statutes, 1916. c. GO, 24;
Maryland, Bagby's Code, 1926, 489; Michigan, Compiled Statutes,
1915, 15104; Minnesota, General Statutes, 1923, 10423, 10424;
Mississippi, Hemingway's Code, 1927, 1174; Missouri, Revised Stat-
utes, 1919, 3605; Montana, Penal Code, 1921, 11494; Nebraska,
Compiled Statutes, 1922, 7088; Nevada, Revised Laws, 1912,
4603, 4605, 4609, 4631; New Jersey, Compiled Statutes, 1910. p.
5319; New York, Consolidated Laws, c. 40, 552, 553; North Caro-
lina, Consolidated Statutes, 1919, 4497, 4498, 4499; North Da-
kota, Compiled Laws, 1913, 10078; Ohio, Page's General Code, 1926,
133S8, 13419; Oklahoma. Session Laws, 1923, c. 46; Oregon. Olsons
Laws, 1920, 2260, 2262, 2266; Pennsylvania, Statutes, 1920, 6306,
1041

438 BRANDEI?, J., dissenting.
The situation in the case at bar differs widely from that

presented in Burdeau v. McDowell, 256 U. S. 4G5. There,
only a single lot of papers was involved. They had been
obtained by a private detective while acting on behalf
of a private party; without the knowledge of any federal
official; long before anyone had thought of instituting a
630S, 6309; Rhode Island, General Laws, 1923, 6104; South Dakota,
Revised Code, 1919, 4346, 9801; Tennessee, Shannon's Code, 1919,
1837, 1838; Utah, Compiled Laws, 1917, 8403, 8405, 8434;
Washington, Pierce's Code, 1921, 8982, 8983, Wisconsin, Statutes,
1927, 348.36.
The Alaskan Penal Code, Act of March 3, 1899, c. 429, 30 Stat.
1253, 1278, provides that " if any officer, agent, operator, clerk, or
employee of any telegraph company, or any other person, shall wil-
fully divulge to any other person than the party from whom the
same was received, or to whom the same was addressed, or his agent
or attorney, any message received or sent, or intended to be sent, over
any telegraph line, or the contents, substance, purport, effect, or
leaning of such message, or any part thereof, . . . the person
so offending shall be deemed guilty of a misdemeanor, and shall be
punished by a fine not to exceed one thousand dollars or imprison-
ment not to exceed one year, or by both such fine and imprisonment,
in the discretion of the court."
The Act of October 29,1918.. c. 197,40 Stat. 1017, provided: " That
whoever during the period of governmental operation of the telephone
and telegraph systems of the United States . . . shall, without
authority and without the knowledge and consent of the other users
thereof, except as may be necessary for operation of the service, tap
any telegraph or telephone line, or wilfully interfere with the opera-
tion of such telephone and telegraph systems or with the transmission
of any telephone or telegraph message, or with the delivery of any
such message, or whoever being employed in any such telephone or
telegraph service shall divulge the contents of any such telephone or
telegraph message to any person not duly authorized to receive the
sime, Ehail *~>e fined not exceeding $1,000 or imprisoned for not more
than one year, or both."
The Radio Act, February 23, 1927, c. 169, 27, 44 Stat. 1162, 1172,
provides that '' no person not being authorized by the sender shall
intercept am' message and divulge or publish the contents, substance,
purpc: i, effect, or meaning of such intercepted message to any person."
596329 31
1042

BRANDEIS, J., dissenting. 277 f.S
federal prosecution. Here, the evidenc obtained by crime

was obtained at the Government's expense, by its officers,
while acting on its behalf; the officers who committed
these crimes are the same officers who were charged with
the enforcement of the Prohibition Act; the crimes of
these officers were committed for the purpose of securing
evidence with which to obtain an indictment and to secure
a conviction. The evidence so obtained constitutes the
warp and woof of the Government's case. The aggregate
of the Government evidence occupies 306 pages of the
printed record. More than 210 of them are filled by
recitals of the details of the wire-tapping and of facts
ascertained thereby.14 There is literally no other evidence
of guilt on the part of some of the defendants except that
illegally obtained by these officers. As to nearly all the
defendants (except those who admitted guilt), the evi-
dence relied upon to secure a conviction consisted mainly
of that which these officers had so obtained by violating
the state law.
As Judge Rudkin said below: " Here we are concerned
with neither eavesdroppers nor thieves. Nor are we con-
cerned with the acts of private individuals. . . . We
are concerned only with the acts of federal agents whose
powers are limited and controlled by the Constitution of
the United States." The Eighteenth Amendment has not
in terms empowered Congress to authorize anyone to vio-
late the criminal laws of a State. And Congress has never
purported to do so. Compare Maryland v. Soper, 270
U. S. 9. The terms of appointment of federal prohibition
agents do not purport to confer upon them authority to
violate any criminal law. Their superior officer, the Secre-
tary of the Treasury, has not instructed them to commit
14
The above figures relate to Case No. 493. In Nos. 532-533, the
Government evidence fills 278 pages, of which 140 are recitals of the
evidence obtained by wire-tapping.
1043
OLMSTEAD r. UNITED STATES. 483

crime on behalf of the United States. It may be assumed

that the Attorney General of the United States did not
give any such instruction.16
When these unlawful acts were committed, they w^re
crimes only of the officers individually. The Government
was innocent, in legal contemplation; for no federal official
is authorized to commit a crime on its behalf. When, the
Government, having full knowledge, sought, through* the
Department of Justice, to avail itself of the fruits of ^hese
acts in order to accomplish its own ends, it assumed moral
responsibility for the officers' crimes. Compare The
Paquete Habana, 189 U. S. 453, 465; O'ReUiy deCamara
v. Brooke, 209 U. S. 45, 52; Dodge v. United States, 272
U. S. 530. 532; Gambino v. United States, 275 U. S. 310.
And if this Court should permit the Government, by
means of its officers' crimes, to effect its purpose of pun-
ishing the defendants, there would seem to be present all
the elements of a ratification. If so, the Government it-
self would become a lawbreaker.
Will this Court by sustaining the judgment below sanc-
tion such conduct oii the part of the Executive? The gov-
erning principle has long been settled. It is that a court
will not redress a wrong when he who invokes its lid
has unclean hands.16 The maxim of unclean hands comes
16
Accordmz to the Government'? brief, p. 41, "The Prohibition
Unit of the Treasury disclaims it [wire-tapping] and the Department
of Justice has frowned on it." See also " Prohibition Enforcement,"
69th Congress, 2d Session, Senate Doc. No. 19S, pp. rv, v, IT, 15,
referred to Committee, January 25, 1927; also Same, Part 2.
"See Hanncy v. Eve, 3 Oanch, 242, 247; BorU: oj the United
States v. Owens, 2 Pet. 527, 538; Bartle v. Coleman. 4 Pet. 184, 188;
Kennett v. Clambers, 14 How. 35, 52; Marshall v. Baltimore & Ohio
R. R. Co., 16 How. 314, 334; Tool Co. v. Norris, 2 Wall 45. 54; The
Ouachita Cottar,, 6 Wall. 521, 532; Coppell v. Hall, 7 Wall. 542; For-
syth v. Woods, U Wall. 4S4, 486; Hanauer v. Doane, 12 Wall. 342,
349; Trist v. Child, 21 Wall. 441, 448; Meguire v. Corwint, 101 U. S.
10S, 111; Oscanyan v. Arms Co., 103 U. S. 261; Irvmi v. Williar, 110
1044
4S4 OCTOBER TERM, 1927.

BRANDEIS, J., dissenting. 277XJ.S,
from courts of equity." But the principle prevails also in

courts of law. Its common application is in civil actions
between private parties. Where the Government is the
actor, the reasons for applying it are even more persua-
sive. Where ,the remedies invoked are those of the crim-
inal law, the reasons are compelling.18
The door of a court is not barred because the plaintiff
has committed a .crime. The confirmed criminal is as
much entitled to redress as his most virtuous fellow citi-
zen; no record of crime, however long, makes one an
outlaw. The court's aid is denied only when he who seeks
it has violated the law in connection with the very trans-
action as to which he seeks legal redress." Then aid
is denied despite the defendant's wrong. It is denied in
order to maintain respect for law; in order to promote
confidence in the administration of justice; in order to
preserve the judicial process from contamination. The
rule is one, not of action, but of inaction. It is sometimes
U. S. 499, 510; WoodstocJc Iron Co. v. Richmond & Danville Exten-
sion Co., 129 U. S. 643; Gibbs v. Consolidated Gas Co., 130 U. B. 396,
411; Embrey v. Jemison, 131 U. S. 336, 34S; West v. Camden, 135
U. F. 507, 521; McMullen v. Hofiman, 174 V. S. 639, 654; Hazelton
v. Shcckelk, 202 U. S. 71; Crocker v. United States, 240 U. . 74, 78.
Compare Holman v. Johnson, 1 Cowp. 341.
17
See Creath's Administrator v. Sims, 5 How. 192, 204; Kennett v.
Chambers, 14 How. 38, 49; Randall v. Howard, 2 Black 5S5, 586;
Wheeler v. Sage, 1 Wall. 518, 530; Dent v. Ferguson. 132 Y. S. 50, 64;
Pope Manufacturing Co. v. Gormully. 144 U. S. 224, 236: Miller v.
Ammon, 145 U. S. 421, 425; Hazelton v. Sheckells, 202 V. S. 71, 79.
Compare International News Service v. Associated Press, 248 U. S.
215, 24o.
18
Compare State v. Simmons, 39 Kan. 262, 264-265; State v. MiRer,
44 Mo. App. 159. 163-164; In re Robinson, 29 Neb. 135; Harris v.
State, 15 Tex. App. 629, 634-635, 639.
18
See Armstrong v. Toler, 11 Wheat. 258; Brooks v. Martin, 2
Wall. 70; Planters' Bank v. Union Bank, 16 Wall. 483, 499-500;
Houston & Texas Central R. R. Co. v. Texas, 177 TJ. S. 66, 99;
Both-well v, Buckbce, Mears Co., 275 U. S. 274.
1045
OLMSTEAD v. UNITED STATES. 4S5

43S BUTLER. J., dissenting
spoken of as a rule of substantive law. But it extends to

matters of procedure as well.20 A defense may be waived.
It is waived when not pleaded. But the objection that
the plaintiff comes with unclean hands will be taken by
the court itself.21 It will be taken despite the wish to
the contrary of all the parties to the litigation. The court
protects itself.
Decency, security and liberty alike demand that govern-
ment officials shall be subjected to the same rules of con-
duct that are commands to the citizen. In a government
of laws, existence of the government will be imperilled
if it fails to observe the law scrupulously. Our Govern-
ment is the potent, the omnipresent teacher. For good
or for ill. it teaches the whole people by its example.
Crime is contagious. If the Government becomes a law-
breaker, it breeds contempt for law; it invites every man
to become a law unto himself; it invites anarch}'. To de-
clare that in the administration of the criminal law the
end justifies the meansto declare that the Government
maj' commit crimes in order to secure the conviction of
a private criminalwould bring terrible retribution.
Against, that pernicious doctrine this Court should reso-
lutely set its face.
MR. JUSTICE BUTLER, dissenting.
I sincerely regret that I cannot support the opinion and
judgments of the Court in these cases.
20
See Lvtton v. Benin. 11 Mod. 50; Barlow v. Hall, 2 Anst. 461;
Wells v. Gurney. 8 Barn. & Cress. 769; Ihley v. Nichols, 12 Pick. 270;
Carpenter v. Spooner, 2 Sandf. 717; Mctcalf v. dark, 41 Larb 45;
Williams ads. Reed, 29 N. J. L. 3S5; Hill v. Goodrich, 32 Corn. 5SS;
Townsend v. Smith, 47 Wis. 623; Blandin v. Ostrander, 239 Ft-i. 700;
Harkin v. Brundage, 276 U. S. 36, id.. 604.
21
Coppell v. Ball, 7 Wall. 542, 55S; Ot canyan v. A.ms Co.. 103
U. S. 261, 267; Biggins v. McCrea, ilC U. S. 671, 6S5. Compare
Evans v. Richardson. 3 Mer. 469; Norman v. Cole, 3 Esp. 253; North-
western Salt Co. v. Electrolytic Alkali Co., [1913] 3 K. B. 422.
1046
The CHAIRMAN. Thank you very much, Congresswoman. I will
yield to questioning, and, Senator Grassley.
Senator GRASSLEY. I have no questions at this time. I reserve my
time.
The CHAIRMAN. The Senator from Massachusetts. Senator Ken-
nedy.
Senator KENNEDY. Just briefly, Barbara Jordan, Congresswoman
Jordan. I think all of us are moved by your eloquence and your
past history as an individual who has dealt with important and dis-
tinguished matters in the Congress. You have also been a very,
very eloquent and compelling voice for equality in our society and
for the securing of the blessing of liberty in our society.
And I am just wondering, as someone who now has been out of
the political swim, and has been working with young people, and
also continues to take a great interest in the issues of equality and
justice in our society, do you feel that if Judge Bork is approved,
that there will be members of our society whose confidence in the
institution of justice will be undermined or threatened? Will there
be many Americans who will feel that the cause of justice, or
equality, is perhaps somewhat lessened in our society?
Ms. JORDAN. Senator, I can only respond to that question with an
unequivocal yes, and I state that because I am talking to these
young people that you are talking about. I am talking to them, and
they are meeting in their clubs, their sororities, their various orga-
nizations, and they are not having little cocktail parties. They are
having letter-writing campaigns to their Members of the United
States Senate.
And what are they writing about? They are writing about the
nomination of Robert Bork. They sense that there is something dif-
ferent about this nomination, and do not want to risk a diminution
of the kind of life they have enjoyed so long, and so well, with the
Supreme Court as guardian.
They do not want to risk losing that, and so, the answer to your
question is yes.
The CHAIRMAN. Senator Specter.
Congresswoman Jordan, Professor Jordan, that was powerful tes-
timony and eloquently stated.
Do you have any views to offer with respect to the definition on
equal protection of the law as it applies to women? That subject
has been a subject of considerably analysis here, and you were
present, of course, during Secretary Coleman's testimony where we
were discussing the issue of heightened scrutiny, Justice Stevens'
standard of reasonable basis, and there is a concern I think felt
generally, that there be a strong standard for equal protection so
that women are reached, and I would be interested to know if you
had any view on that subject.
Ms. JORDAN. My view comports pretty much with a highest scru-
tiny requirement for equal protection. I think that that was a part
of the intent of the framers of the 14th amendment and equal pro-
tection clause, that such acts of discrimination were entitled to the
highest, most careful of scrutiny available and allowable. Yes, sir.
1047
Senator SPECTER. Congresswoman Jordan, there has been very
extensive discussion about professorial theorizing, and as a profes-
sor yourself, you have a unique opportunity to provide some com-
ment on that.
And the subject matter really boils down to the issue as to
whether there ought to be some considerable latitude for professo-
rial theorizing, because there is no question about the fact that
Judge Bork, as a professor, did so.
And I would like to separate off, for purposes of your response to
this question, the considerable speechmaking which he did after he
was on the bench, because that is in a different category.
But if you take the 1971 Indiana Law Review, there are views
expressed there which are at sharp variance from what Judge Bork
testified he would do on the Supreme Court in terms of the clear-
and-present-danger test, or, equal protection being applicable only
to race, not even to ethnics in that article.
But I would be interested in your thought as to the latitude that
ought to be accorded to professorial theorizing, and whether you
think that professors may be somewhat chilled by the kind of re-
ception we gave to that professorial theorizing in this committee.
Ms. JORDAN. Senator Specter, professors, in my opinion, will not
be chilled by the examination you gave professorial theorizing. The
reason why I feel that it is disingenuous to try to separate Robert
Bork's professorial theorizing to what he may do on the bench is
this.
Those theories he espoused were not lightly held theories, but
deeply felt, and a part of a consistent ideology and philosophy
which he was developing.
When you have deeply held theories which become incorporated
into a philosophy which you are developing with the view to ad-
vancing, you do not reject those theories cavalierly, and decide,
now that I am a judge, I cannot believe that any more.
Am I saying, then, that I find some of Judge Bork's recantation
incredulous? The answer is yes.
Senator SPECTER. Well, I have not asked that question yet.
[Laughter.]
But I will now, but in a slightly different form.
Would you give any weight at alland I phrase that carefully
to Judge Bork's statement that he would apply the settled law on
speech, clear-and-present-danger test, and that he would apply the
settled law on a more expansive interpretation of equal protection
under Justice Stevens' standard.
Would you give him any credence at all on those statements?
Ms. JORDAN. Any credence at all is your question.
Senator SPECTER. Right.
Ms. JORDAN. At all. I would say, Senator, that because of the
statements which are being lately made by Robert Bork, I would
feel called upon to consider them carefully and give them little
weight.
Senator SPECTER. Well, that is an even more careful answer than
the question, Congresswoman Jordan.
The nomination comes to this committee with many complica-
tions surrounding it, and when you point out that Judge Bork has
1048
expressed his philosophy very forcefully, that is really the nature
of the man.
He has criticized the Court in very strong language. I think
Judge Bork does not do anything other than with strength. He has
said that the court lacks legitimacy or judges are civilly disobedient
or articulated matters in very strong terms. Part of the explana-
tion that has been given for what Judge Bork has been doing is the
very unique relationship he had with his fellow professor at the
Yale Law School, Alexander Bickel, who allegedly said to him,
"Wreak yourself upon the world," an expression I had not heard of
until I started to study Judge Bork's background.
I suppose what that means, or we can conclude what that means
at this stage is: Go out and make your views known and make
them known very strongly. I was interested to find later that Pro-
fessor Bickel had gotten the expression, "Wreak yourself upon the
world" from Justice Frankfurter for whom Professor Bickel
clerked; and that, in turn, Justice Frankfurter had gotten that ex-
pression from Justice Holmes.
In trying to figure out where Judge Bork comes down in terms of
being a Supreme Court nominee, there is something to be said for
the proposition articulated by some that he has campaigned for the
Supreme Court from podium to podium. I have already said that I
do not object to that. I do not know that any of the Senators would
object to that since that is all we do is campaign from podium to
podium.
The CHAIRMAN. I do not even object to Alexander Bickel using
someone else's quote. [Laughter.]
Senator SPECTER. The New York Times this morning has two ar-
ticles, Senator Biden, Mr. Chairman, saying that that has been
very fashionable historically. It is done consistently. You may be
exonerated this week.
The CHAIRMAN. Or I may be in deep trouble before it is over.
Senator SPECTER. But you cannot go back and unprint all those
prior articles.
The question that I have for you, Congresswoman Jordan, is
really speculative, but you have been a Congresswoman. You are a
professor; you have been in the public arena considerably. This is a
question which I am considering as deeply as I can. Senator Heflin
said earlier that perhaps we ought to be psychiatrists to try to
figure out what is going on. I think this has been a very unique
proceeding in many, many ways.
It is an unusual occurrence where the Senate has the nominee
before it for two-and-a-half months before the process starts, where
we are not occupied day and night on the Senate floor so we have a
chance to really study this matter. But one analysis of Judge Bork
is that he has campaigned and he has been interested in the Su-
preme Court, and I give him a lot of credit for that. He has been
very prolific; he has been very studious, and he has been strong in
his language; and he has moved from one position to another. He
had a good response for the socialism issue in terms of Winston
Churchill's differing positions on it.
But the ultimate question which I would appreciate your musing
onand this will be my final questionis whether and to what
extent we ought to give him credit for having gotten to be a Su-
1049
preme Court nominee, and then look closely at his representations
in this room where he is under oath, and his very forceful state-
ment that he does not plan to be disgraced in history and his own
sense of rectitude and what we might expect of him as a Supreme
Court Justice, which might differ from every place he has been so
far, as Justice Black did, and that so many in the history of the
Court have done.
Ms. JORDAN. Senator, you cannot afford, in my opinion, to take
lightly anything Judge Bork has said to you or anything that he
has represented to you in terms of his ideas and interests now. I
certainly can commend your not holding it against him that he
campaigned to be a Supreme Court Justice. That is the way we get
to be what we want to be, let people know we want to be it.
Therefore, I believe that you have every right to search him as
thoroughly as you are, and I think you have done that and are con-
tinuing to do that. And you have got some days to go.
Senator, of course, I am not going to lecture you on advise and
consent, but that is a very powerful task that you have. When you
think about it, half of the task, advice, you really do not get a
chance to do that when it would do the most good. The President
does not seek your advice. He sends the nomination up, and then
you examine the nominee because you need to be able to determine
whether you are going to consent.
So your very thorough searching review of the nominee is in
order. There is just no reason that you should not do exactly what
you are doing.
Senator SPECTER. Well, we are pursuing the advice and consent
function in detail, but it is plain, of course, that if we reject Judge
Bork that our advice may not be sought on his successor nominee;
and it is doubtful if anybody who comes into this room following a
rejection of Judge Bork will undergo the kind of scrutiny we have
here. So it is a weighty consideration.
Ms. JORDAN. It is but I hope you do not look past Judge Bork to
what may happen in the event of. I think that is not the way to
proceed.
Senator SPECTER. Well, we will take them one at a time.
Ms. JORDAN. One at a time.
Senator SPECTER. There is no doubt about that, Congresswoman
Jordan.
Thank you very much for your testimony. As you can tell, you
have many admirers in this room, on this Hill and throughout the
country. Thank you.
Senator Metzenbaum, please.
Senator METZENBAUM. I just want to point out to my distin-
guished colleague from Pennsylvania that Senator Simpson saw fit
to use these hearings to nominate Senator Hatch in the event Sen-
ator Bork is not confirmed. And it is very likely that you might be
on the list of considered nominees also for the position.
Senator SPECTER. Not after these hearings, Senator Metzenbaum.
[Laughter.]
The CHAIRMAN. YOU will be on someone's list, though, Arlen.
Senator METZENBAUM. Congresswoman, Professor, I would like to
just ask you a question about Judge Bork's approach to antitrust
1050
law. I ask it of you because you are a former member of this body,
of the Congress, and in his writings in the area of antitrust law he
has a rather contentious attitude towards members of Congress. He
has written, "Whatever the merits of individual members, Con-
gress as a whole is institutionally incapable of the sustained, rigor-
ous and consistent thought that the fashioning of a rational anti-
trust policy requires. There is always in Congress, moreover, a
strong element of anti-corporate, populace sentiment. The populace
sentiment runs strong in Congress, of course, because it runs
strong in the electorate."
He then speaks further to that subject and says, "These are per-
haps sufficient reasons why Congress has not aided the courts
greatly in forming antitrust doctrine, and why any future congres-
sional participation is likely to make matters worse."
Now, as you know, in the book "Antitrust Paradox"which may
or may not have come to your attentionin that book he talks
about consumer welfare and makes the point that consumer wel-
fare is helped by corporate efficiency, but at the same time would
take issue with the Supreme Court's sustaining of resale price
maintenance legislation.
I wondered whether or not you would have any thoughts on that
subject.
Ms. JORDAN. All I can say, Senator, is I am familiar with the dis-
dain which has been expressed by Judge Bork in terms of the Con-
gress taking action in antitrust matters. It appears that from what
he has said he does not feel that Congress has enough collective in-
telligence to act in intelligently in antitrust matters; and I believe
that that is simply an arrogance of intellect on his part. It is up to
you to decide whether this person is so much brighter than the col-
lective members of the Congress of the United States that he is to
simply disregard what Congress has done in antitrust matters and
simply say, well, he must be right and we do not have sense
enough to act in this area, and so we should not act.
But I certainly disagree with Judge Bork on these matters be-
cause, as you know, I served on the House Judiciary Committee
and I served on the Antitrust Subcommittee, and I believe that we
had a sense of what we were doing. And I will match my wits with
Judge Bork at any time, and I would invite him to come into the
forum and let us discuss the issue and see who has the proper point
of view in antitrust matters and vertical and horizontal integra-
tion, which is what he talks about a lot in his theory.
Senator METZENBAUM. And he talks about permitting corpora-
tions to merge until there are only two, and he talks about corpora-
tions being able to maintain prices so that consumers cannot buy
at the lowest competitive price.
Ms. JORDAN. Which, in my opinion, borders on the outlandish.
Senator METZENBAUM. Thank you.
I just have one more question. I had said earlier that Judge Bork
himself is not a frightening man, but that his views are very fright-
ening to American women, to minorities in this country. You have
been in the political mainstream for a good many years. Can you
tell me when blacks of this country were as exorcised about an
issue as much as they are exorcised and concerned about Judge
Bork's nomination? How many years back would we have to go?
1051
Ms. JORDAN. We would have to go back a long, long way because,
as I indicated in response to a question from Senator Kennedy, I
have not seen so much energy exorcised on the part of black people
and women about an issue in many, many years. They just sense
the importance of this.
It has been many, many years since we have seen that kind of
energy exorcised.
Senator METZENBAUM. Thank you very much. Congress suffered
when you left us, but it is a delight to have you back here.
Ms. JORDAN. Thank you, Senator.
The CHAIRMAN. Senator Humphrey.
Senator HUMPHREY. Which title do you prefer?
Ms. JORDAN. Whichever is comfortable for you.
Senator HUMPHREY. YOU throw it back every time, do you not?
All right. Congresswoman Jordan, let us turn to the Cox affair
for a moment, if we may. I think it has been turned to enough
times, but it was raised again. In your testimony, in fact, you said
that, in your opinion, Robert Bork as Solicitor General violated reg-
ulations, if not law, was guilty of such violations.
If that is so, if that were so, was the Senate wrong in confirming
Robert Bork? I mean, that violation of law is a matter of integrity.
Was the Senate wrong in confirming Robert Bork to the D.C. Cir-
cuit Court of Appeals?
Ms. JORDAN. Senator, inasmuch as I have never been a member
of this august body known as the United States Senate, I do not
know whether you were wrong. You might have been.
Senator HUMPHREY. In your opinion. I am asking in your opin-
ion.
Ms. JORDAN. I know. I know what you are asking. But what has
to be understood is that the qualifications as set out by the ABA
for its ranking and rating of persons who are nominated, those
qualifications are totally different from what you as a Senator
must consider when you are looking at the nominee.
Senator HUMPHREY. Yes, and the ABA says so.
Ms. JORDAN. Right. And I would suggest, then, that the Senate in
its collective wisdom apparently decided that, given its duty and
obligation under the law in its advice and consent function, it was
the correct thing for the Senate to do, and I would not second-guess
it.
Senator HUMPHREY. Well, really, you are evading the question
outrageously. First you accuse Robert Bork of violating the law.
Ms. JORDAN. He did violate the law.
Senator HUMPHREY. Very well. Then, in your opinion, should the
Senate have refused confirmation?
Ms. JORDAN. And what I am saying to you is I am not going to
second-guess the Senate. If the Senate wants to confirm a person
who has blatantly violated the law, the Senate must have good
reason for doing that.
Senator HUMPHREY. What possible reason could the Senate have
for confirming unanimously someone you claim violated the law?
Ms. JORDAN. The Senate maybe felt that that was not a serious
enough aberration for them to deny confirmation.
Senator HUMPHREY. YOU really cannot be serious. You cannot be
serious on that.
1052
Ms. JORDAN. Of course I can be.
Senator HUMPHREY. I have never seen you humorous, I must say,
so maybe this is the first time, tongue in cheek.
Well, very well. How about the ABA? As you know, the ABA in
1982 gave Robert Bork the highest qualification, the highest possi-
ble rating, exceptionally well qualified, EWQ. Was the ABA wrong
if Robert Bork is a criminal, as you suggest?
Ms. JORDAN. Senator Humphrey, I am not calling him a crimi-
nal. He committed an illegal act.
Ms. JORDAN. Every action of illegality does not make a criminal.
Senator HUMPHREY. I see.
Ms. JORDAN. Therefore, I do not call him a criminal. And the
ABA gave its highest rating. There is not a body in the land which,
in my judgment, is incapable of being from time to time misguided.
Senator HUMPHREY. Indeed. Including the Supreme Court, as you
know, and I am sure you would admit in the case of some land-
mark decisions which have been reversed by one means or another,
thank goodness.
You are very good, Professor. I believe I will call you Professor.
Ms. JORDAN. All right.
Senator HUMPHREY. Well, let us talk about another point since I
cannot get anywhere. Although I think I could get a lesser person
really over a barrel, I cannot get you over that barrel. You said
something that disturbed me. I do not know if you meant it quite
the way you said it, but you said in reference to your own experi-
ence as one who suffered greatly from discriminationI have for-
gotten how you phrased it, but you said thatI wish I could re-
member.
You said something about you personally saw the Supreme Court
as the guardian of your rights. Is that a fair paraphrase?
Ms. JORDAN. Guardian of our liberties. Guardian of our liberties,
guardian of the rights of the individual.
Senator HUMPHREY. I do not quite agree with that, and I think
here is the nub of this controversy. I view the Constitution and not
judges as the guardian of our freedom, our rights, our liberty. It is
not the opinions of judges, personal opinions which is the guardian
of our freedom, I am sure you will agree, but a carefully crafted
document.
Ms. JORDAN. Senator, you are right this is the nub of the issue.
Senator HUMPHREY. Got one.
Ms. JORDAN. Finally, you are right. [Laughter.]
Th nub of the issue is this: Many people, particularly weak
people, underprivileged, unrepresented, under-represented, minori-
ty people, particularly the "outs," have looked to the Supreme
Court as the rescuer. The Supreme Court will throw out a lifeline
when the legislators and the governors and everybody else refuses
to do so.
Ms. JORDAN. And there is*, Senator, historical precedent for view-
ing the Court that way.
That precedent goes all the way back to an exchange of letters
between Thomas Jefferson and James Madison. Thomas Jefferson
was all for a Bill of Rights being added to the Constitution. This
1053
was during the time of the ratification campaign. Thomas Jefferson
was all for it. James Madison said no necessity for it.
Thomas Jefferson said, "Well, let me try to explain to you, Mr.
Madison, why we need to put these rights in the Constitution. If we
put them there, there will be courts to look at them and see that
they are protected from intrusion by the government." Madison
bought the argument and said, "We will do it because there will be
independent judicial tribunals protecting the rights." That is where
the correspondence starts.
You can take it up further. There is a most obscure case that I
know you have not seen in your deliberations here. It is a footnote
in the Carolene Products Case v. U.S., a 1938 case, footnote 4. It
was so significant that there have been pages and pages written in
constitutional texts just about footnote 4. What did footnote 4 say?
The Judiciary has a special and unique task to protect minorities
and people who need protection, and that is where that uniqueness
of the judicial body comes forth. So, yes, I said the Supreme Court
is the protector of the rights of the individuals. I believe in that
independent tribunal, not subject to the whims of the electorate,
not subject to the bias of the electorate, but above that bias and
protecting our rights. I think that is the proper function of the
court, and the reason why so many people affected, opposed the
nomination of Judge Bork is they do not want to seewe do not
want to see an articulate and persuasive voice on the Supreme
Court saying "That is not your function."
The CHAIRMAN. If I could interrupt for just a moment on this
point. I would like to quote from Judge Bork on footnote 4 to which
you refer. He said, "Footnote 4 of the Carolene Products decision, I
am thinking of putting errata sheets in every copy of the United
States reports stating that footnote was a typographical error, thus
wiping out the entire jurisprudential industry and bringing two
dozen academic careers to an abrupt conclusion", end of quote.
He obviously has a different view than you.
Ms. JORDAN. Yes, he does.
The CHAIRMAN. And I think you are both correct, both my col-
league from New Hampshire and my former colleague from Texas,
in that that is the nub of the matter.
Ms. JORDAN. Yes, it is.
The CHAIRMAN. I beg your pardon. He said that in a 1974 speech
at the Mayflower Hotel, and I would ask that it be entered into the
record with the appropriate attribution footnoted.
[Material follows:]
1054
MAYFLOWfcR HOTEL SPEECH
The title given this talk "The Consequences of Judicial
Imperial ism" may suggest that part of what ought to be the argument
is tucked neatly into the premise, that is the proposition that the
judiciary have exceeded the bounds of their legitimate authority.
Though the title was assigned, it is only fair to say I did not
protest.
It seems to me that in many areas, not merely that of the role
of the judiciary, we are more in need of constitutional thinking than
at any time since the framing of the Constitution and the period
before, during, and after the Civil War. Our society is changing
drastically, and the changes to be observed in the judiciary are
merely one of the alterations that require thinking about.
Walter Bagehot sunned it up best when he said,
The characteristic denier of great nations, like the

Ho-rans and the Er.jlisn, which have a lone history of
continuous creation, is that they pay at last fail
fron not comprehending the ereat institutions which they
have created.
One of the greatest of the creations o: the American nation is
a feaeral judiciarv empowered to set aside the acts of democratic
maionties in the name of the enduring values named in tne Constitution.
It is unique, it has undoubtedly contributed greatly to our freedom
and to our sense of nationhood, our sense that America is founded upon
the idea of an untouchable core of human freedom. But judicial po'Jer
is not invariably beneficent. I invite you to co^-pare two reflections
by one of America's greatest legal scholars before and after judicial
activism had reached its present proportions.
In 1962 Alexander M. Bickel was able to write a book about the
federal judiciary entitled, The Least Dangerous Branch, in which he
quoted Hamilton's words that "the judiciary, from the nature of its
functions, will always be the least dangerous to the political rights
of the Constitution" because it has ''no influence over either the sword
or the purse; no direction either of the strength or of the wealth of
the society; and can take r.o active resolution whatever."
Not long before his tragically early death in 1974, Bickel wrote
in another vein. In discussing civil disobedience in America, an

1055
attitude toward law ard rules that had its culmination in Watergate,
he said:
, given political realities'
That judiciary had, for Alex Bickel, become a dangerous branch
because it increasingly violated a fundamental value of our society.
'It is the premise of our legal order," he wrote, "that its own coirplicatec
arrangements, although subject to evolutionary change, are more important
than any momentary objective."
It is that lesson, that conprehension of this great institution,
that we are in danger of losing, and with it much else central to our
civilization.
In the time available, I can but briefly outline the dangerous
consequences of the era of judicial activism that began with the
Warren Court and has not ended yet.
If pressed to prove that courts have become activist I would
respond in two ways. First, they have expanded the scope of their
authority dramatically in the past twenty years. Activism has appeared
before in our history, but it must be admitted that courts legislate
more freely and more frequently now, and they have displayed an un-
precedented willingness to take over major executive functions. If
it nas not become routine, it has certainly become common for courts
to enter into the detailed administration of prisons, mental hones,
police and fire departments, and to review adninistrative agency
decisions with a severitv ard particularity that renlaces agency
Giscrenen with judicial discretion.
An alternative measure of -judicial activism is the degree to
whic^ courts have freed themselves r'rou arv r.eaning to be found in
the Constitution by conventional modes of legal interpretation, the
degree to which meaning is assigned the Constitution wh

which is not to
be found in its text, nistory, and structure and is often contradicted by
text, history, or structure. Kardly anyone denies that is an accurate

1056
description of what occurs.
Instead the scholarly debate swirls, or perhaps stagnates, around
the issue of whether judicial rewriting of the Constitution is justified.
In fact, the debate is less about that than the question of which
justification for rewriting the Constitution is better. One popular
argument is that courts must cure the failures of democracy by protecting
groups identified as "discrete and insular minorities," a notion suggested
by footnote four of the Carolene Products decision. I am thinking of
putting errata sheets in every copy of volume 304 of the United States
Reports stating that footnote four was a typographical error, thus
wiping out an entire jurisprudential industry and bringing two dozen
academic careers to an abrupt conclusion.
The difficulty with the argument that courts should undertake to
reoair the defects of democratic processes is that the demonstration
of a defect usually consists in pointing to a law that the scholar
in auestion would have vetoed had he been the governor. The process
is not really shown to be defective; the result is simply disliked.
The other approach is that of noral philosophy. The law schools
are avash with social contractarians, utilitarians, linguistic analysts,
ard Turisnrudes of every persuasion. It has gotten so you can't swing
a cat in the facultv lounge without damaging sorre stern young philosopher -
though there nay be rooi for argument about the social utility of that-
taon; the more thoughtful atter.pts to justifv a judiciary that departs
from the fair meaning of the Constitution is thatjHarry Wellington, the
dean of tne Yale Law School, a nan whom I have no desire to hit with a
cat for rany reasons, some of them not connected with self-interest. He
contends that constitutional courts may legitimately enforce against
legislatures the conventional morality of our society. The conventional
morality is not the judges' morality but ours, the society's. Courts,
he believes, are the proper agency for the imposition of principles
derived from morality because, being isolated from interest group politics,
they are institutionally better equipped than legislatures, to discern
conventional morality. He states, "the wav in which one learns
about the conventional morality of a society is to live in it, become
sensitive to it, experience widely, read extensively, and ruminate,
reflect, and analyze situations that seem to call moral obligations

1057
into p l a y . This tas k m a y b e called the m e t h o d of philosophy."
Among the m a n y r e a s o n s for d u b i e t y a b o u t this a p p r o a c h is that
there does not appear to b e a s i n g l e m o r a l i t y . T h e m o r a l i t y of complex
societies tends not to b e m o n o l i t h i c and to b e filled with inconsistencies.
The method of p h i l o s o p h y , w h i c h W e l l i n g t o n D r e s c r i b e s , and w h i c h is the
method advocated by n o s t f r i e n d s of a n a c t i v i s t j u d i c i a r y , is a p r e s c r i p -
tion for d i s c e r n i n g not the m o r a l i t y of the s o c i e tv at l a r g e , TnTF the

>*>
a-Tj-'"-*-'. '
morality of the upper middle class an3",~"pro~bably, because of the materials
A
fro~. which it will be drawn, primarily the morality of the intellectual-
acaoer.ic segneat of that class. The norality of other segnents of the
co-r-unitv is likelv tn be lrrcoly unpublished, inarticulate, and Dhrased
in ways intellectuals dislike. In any event, the notion that the
generality of judges have the tine or inclination for runination and
philosophical analysis is at odds inch reality. If that is what we
want, and I don't, we will have to choose our judges in different ways
and drastically reduce their workloads.
These considerations are sufficient, I think, to show that there is
no philosophical rudder for judges and that once they depart fron the
conventional legal modes of constitutional interpretation they are not
merely at sea but adrift. That is the fate of activist courts who
abandon the confining safeguards of law in order to achieve laudable
momentary objectives.
The consequences of judicial activism seem to me damaging in three
areas: the effects upon law, upon society, and upon our political
arrangements.
The implications for law are fairly obvious. It will display, in
greater or less degree, the following characteristics: law will be
political, it will display strong signs ofrincoherence, it will manage
affairs increasingly incompetently, and much of it will become
trivialized.
The matters with which constitutional law deals are of incense
political interest. They are made subject to law and courts precisely to
reTove them from politics. But that requires other rules to bind the
judge. Courts who have moved away from conventional legal materials
have no such rules and can only decide politically It is, moreover, an
unsatisfactory form of oolitic?, ore hidden fror1 nublic vie", because the
1058
inhibitions of the traditional judicial process remain in place so that
interest groups have little or no access to the process and no power
to censure those responsible for the outcome. As legislatures, in other
words, courts are inaccessible and unresponsive.
The body of law produced by a political court will be intellectually
incoherent because individual nudges will have different hierarchies of
political values. I remember a poignant evening when a young, highly
philosophical Drofessor from another school came to Yale to talk about
his study of the Suprer.e Court. Ke had indeatified a long list of values
that seemed important in the Court's opinions equality, freedom,
education, leisure, and so on. He had worked his way through the cases
to find the philosophical stance of the Court, and he diagrammed the
results for us on the blackboard. Unfortunately, what the diagram showed
was that value A was preferred to B, B to C, C to D, but D was ranked
higher than A. He said he could not believe it and was going back to the
drawing board to see what he had missed. What he had missed is that
political groups do not produce consistent votes.
Incoherent law is virtually a denial of the idea of law. It
works upon litigants, fails to give fair warning, and educates us to see
law as essentially manipulative and cynical. At Yale, for reasons we
cannot remember, we teach constitutional law in the first semester of
the first year, and, try as one will to counteract its baleful influence,
the contents of the casebook overwhelm the teacher. It is said that
some years ago a politically-oriented version of legal realisa flourished
at Yale and the faculty taught it to the courts. If that is so, the
courts are having their revenge, because now the casebook teaches I U to
tre Yale stvdents.
Political courts ;ill also overload themselves because they push
lav into areas it had not previously reached. Congress has a great
deal of responsibility for overloaded court systems, but 1 wonder if even
that is not partly due to the fact that courts have displayed a willing-
ness to take on policy issues m a legislative nanner. In any event,
overload diminishes the competence of courts because they deal more rapidly
with more problems, more institutions, and more subjects.
Activism also tends to trivialize the Constitution. Once legal in-
terpretation is abandoned in order to produce good results, it is almost

1059
impossible to find a stopping point. For example, once the Court exoanded
the equal protection clause beyond the subject of race, standards for
demanding or not demanding equality blurred, and we have arrived at the
situation where the Court solemnly addiesses itself to the question of
what the Constitution of the United States has to say about a state
setting the age for drinking 3.2 beer for males at 21 and females at
18. It turned out that the Constitution forbade such treatment of that
discrete and insular minority, males, and the dispute generated seven
different opinions, suggesting that the issue was of roughly the same
portent for the Republic as the Steel Seizure Case. I cannot bring
myself to comment upon the recent discovery that the framers of the
fourteenth amendment required female reporters in the Yankees' locker
room.
I want to turn next to some of the effects of judicial activism upon
t^s society. Two cone to rind' the infliction of inefficiency upon
social and economic processes, and damage to the community's morale
and self-confidence in its moral standards.
The infliction of inefficiency upon economic processes has occurred
primarily through the expansive reading of a^ti-trust and regulator-
statutes. That is a subject so familiar that I pause only to mention
it. The imposition of added costs en other institutions and processes
occurs through the judiciary's tendency to regard -judicial processes as
the rodel to which other processes should tend, so that in a variety of
contexts the Court requires some f o m of due process, soire kind of a
hearing, before action can be taker.. This is often auite inappropriate
to the processes involved, whether school discipline or the reoossession
of a television set for nonpayment of installments. Su powerful is the
influence of that lesson that private institutions such as universities
begin to judicialize their processes for discipline and other matters,
and the adversary process often polarizes tbe members of the community
in ways that older, more informal processes did not. Increased costs also
occur when the courts undertake to prescribe in detail the behavior of

1060
institutions such as mental hospitals. In the name of the Constitution,
a particular standard of care and theory of therapy is chosen and imposed
upon institutions that have some claim to know better how to operate.
More worrisome in many respects is the impact of an activist judiciary
upon social morale and self-confidence. Constitutional law as enunciated
by the Supreme Court is an enormously powerful moral teacher. Too often
its teachings are a rebuke to the traditional moral standards of the
community. Local conrnunities are told that their schools may not inflict
even light punishment for disciplinary infractions without following
procedures prescribed by courts and rust then fact possible judicial
review of their decisions. The authority of adults, teachers, and
institutions other than courts is trade suspect and weakened. Local
communities are freciuentlv inforned that even slight episodes of racial
sesre\it:on, often well in the oast, are so heinous tVit entire school
3vste"is -ust De reorganized and run D> courts. Students rust be bused
from their neighborhoods in order to achieve snecified degrees of racial
integration, the lesson being that free social processes and individual
choices that did not achieve that integration are blameworthy. T m s is
naturallv viewed as rebuke and ounishnient.
Comnunities are fi-rther inferred that tneir attenDts to cortrcl
pornography and obscenity, to prevent the deterioration of the moral
atmosDhere in which they live, are in fact benighted violations of First
Amendment freedoms. They are often told in fact that the Constitution
enshrines moral relativist".. '.vhen the Court denied state power to punish
the public display of an obscenity, the opinion said, with stunning
casualness, that "one rain's vulgarity is another's lyric." That doctrine
would deny society the right to enforce any moral standards against
dissenters. Ue have the judiciary to thank for the current condition
of Times Square and the plague of pornography around us.
The subject of the public's frustration with a judicial system that
seens unwilling to punish criminals with the severity that the public's
moral sense demands is too well known to require extended comment. It
is epitomized in the judiciary's whittling away at the death penalty,
a punishment explicitly contemplated by the Constitution and obviously
desired by a majority of the electorate.
Such judicial behavior cannot but frustrate society, raake it doubt-

1061
ful of its own healthiest moral standards, and weaken its morale.
That is one of the more serious consequences of judicial imperialism.
I cOTê a: the end Co consideration of the impact of judicial
activisa upon our politics. The first and most obvious is that activism
requires a degree of disingcnuousness The Court's authority derives
largely from the public belief that it really is the Constitution and
no: t"e politico of a najority of nine lawyers that recuires denocratic
choices to be overturned The Court, justifiably concerned about the
possibly tenuous base of its power, is careful to insist that its r.ost
political decisions are in fact coriDelled by the Constitution. The
opinion in Harper v. Virginia Board of Elections is typical of many.
The Court struck down a poll tax, though it was entirely clear that
the frmers of the fourteenth arrendvient had no such result m nind.
That difficulty was addressed with this rhetoric: "the Equal Protection
Clause is not shackled to the political theory of a particular era...
(W)e have never been confined to historic notions of equality." Which
is to say that a majority of the Court has substituted a new notion of
equality for that of the framers. But then the opinion states, "Our
conclusion... is founded not on what we think governmental policy should
be, but on what the Equal Protection Clause requires." The second
assertion cannot be true if the first is.
There are worrisome signs, however, that we are coming to political
governance by the judiciary. Perhaps, under its tutelage, we have
come to believe that democratic processes are suspect, essentially
unprincipled and untrustworthy, and that judicial governance is to be
preferred. Perhaps prolonged judicial activism is not entirely responsible
for that; there are other possible sources of weariness with democracy
and self-government. It is also possible that the rise of pervasive,
intrusive, and unresponsive bureaucracies has made politics seem rela-
tively ineffectual. The desire for judicial government is dramatically
illustrated by the proposed Equal Rights Amendment. It would confirm
the courts in their worst tendencies by handling them, without legis-
lative guidance of any sort, the task of naking the infinite number of
political decisions required in deciding when men and women nust be
treated alike, when they need not be, and, perhaps, when they may not be.
The fact t lat the courts have alrcr.-.'v started u)n that nach on their
1062
own is no reason to legitimize it. But the fact that adoption of ERA
i-ould ratify and forward a dangerous constitutional revolution is the
one leature of it that is rarely, if ever, critized.
Finally, it should be noted that an activist judiciary, in our
tire, -.ill increase the already disoronortionate influence of intellectuals
upon our politics. Judges have no electorate to face. What they have
to face is opinion shaped by the intellectual class, primarily academics
and journalists. Judges themselves are members of that class, they
tend to respond to its values, and r. steady strean of clerks fresh iron
the law schools reinforce that tendency. Moreover, a judge's current
reputation as well as his place in historv is likely to be determined
by journalists and academics. --Over time, a judge who was not influenced
by the dominant intellectual and moral climate in which he lives would
have to be a very hardy or insensitive characther indeed.
For complicated reasons, which it is no part of my assignment to
trace here, the intellectual class tends to be left of center on the
American political spectrum, and more egalitarian and morally relativistic
as well. It displays the characteristics we see in the movement of con-
stitutional law. This puts a somewhat more somber light than perhaps
he intended upon Anthony Lewis' observation that "If American judges
are the most powerful on earth, so too American law schools and legal
writers are the most influential."
The point I am making is not refuted but reinforced by the reputa-
tion of the current Supreme Court as very conservative. It is actually
a mildly liberal Court. Though such matters are impressionistic to soi?e
degree, most people I have talked to, including those of a liberal
persuasion, tend to agree that on issues where the Court has a free
vote, where there is no constitutional compulsion, the Court rather
regularly produces results nore liberal than those you would get after
full debate in a national referendum. The Court is viewed as con-
servative only because of an error of parallax: we see it through
the" 1-cmr-Trrmnaoa&ifcny the legal academies and the media, and hence fron*
their perspective.
No one can doubt the Court's great educative power, and the fact
that it tends to respond to intellectual class values reans that its
influence is rather steadily pressing our views and our politics to

1063
the liberal side of the spectrum. Thr.r is ore reason that liberals
and intellectuals of this generation aoplaud and encourage judicial
imperialism just as businessmen and conservatives of other generations
once did.
At the end a pair of caveats are in order. I do not for a moment
suggest that/the trends I have been describing are solely or even pri-
marily caused by judicial activism. I do suggest that activism con-
tributes to them. Nor do I yield to anyone in admiration of the role
the federal courts have played and do play in our polity. Without
their constitutional function we should be a very much less happy
nation than we are. But to say that is not to say that some tendencies
are not deeply disturbing. Activism is not the same as judicial
enforcement of constitutional guarantees. The consequences of activism
by the judiciary are such that they deserve r>rominence in public dis-
cussion. We have created a great institution in the federal judiciary,
and ve ought not to fail it and ourselves by not comprehending the
institution's strengths and the limitations.

1064
Senator HUMPHREY. Well, indeed, we have reached the nub and
the essence of the controversy. I doubt that we will resolve it here.
The Senate will ultimately resolve it for the moment when we get
to a vote on the floor, but that is the ultimatethat is the real es-
sence of the controversy here, whether the court is a place that can
disregard thewhether the court is a place to which people can
repair who are impatient with the democratic process.
Now you would have had to run several more times for the
Texas State Legislature, not eleven times, but more times, you are
right, because the democratic process would have worked more
slowly, as it does, than does the judicial process of fiat, judicial fiat;
no question. Dictatorships are always more efficient, act more
quickly than democracies, but in the long-run, Congresswoman and
Professor, whom I admire so much, you are wrong. You cannot
resort to expediency over principle.
The principle is that where the intent of! the framers does not
provide a remedy, then the resort is the democratic process, howev-
er slow it is, however subject it is to the base instincts of men. That
is the best way to proceed.
Ms. JORDAN. Senator, you got off the reservation when you start-
ed talking about the intent of the legislators.
Senator HUMPHREY. Framers.
Ms. JORDAN. I mean intent of the framers. I guess you are into
the original intent bit.
Senator HUMPHREY. NO. What I am not into is judges making up
things that are not in the Constitution. That should be the function
of the democratically elected legislators, not judges, who have life-
time tenure and are dictators, which is why they can be so efficient
when they have a mind to be so.
Ms. JORDAN. Senator, may I ask you a question?
Senator HUMPHREY. Why not?
Ms. JORDAN. HOW does one arrive at original intent?
Senator HUMPHREY. It is a very difficult process, as all will ac-
knowledge, but it takesthose who do it best are those who have a
systematic means of excluding personal preference and bias, such
as those who profess judicial restraint.
Ms. JORDAN. And therefore, Senator, entering your definition of
original intent, you bring to bear the subjective biases and lenses of
the person who is doing the interpreting, correct?
Senator HUMPHREY. All human beings are subject to human fail-
ings.
Ms. JORDAN. And that is, I believe, a serious hole in the whole
theory of original intent.
Senator HUMPHREY. Yes, but it works in both directions. Judges,
with all the integrity they possess, arrive at new meanings of the
Constitution are just as prey to that failing as are those who do not
see all that is. Right? It works both ways.
Ms. JORDAN. I do not
Senator HUMPHREY. That is why it is so important that we select
carefully because judges are human; they are not objective perfect-
ly. They bring to the court their own set of values. And when they
start finding things in the Constitution which are not there, they
are in fact substituting their own values. And, boy, it is tough, is it
not, finding just a perfectly objective person.
1065
Ms. JORDAN. But if they go too far, it is the Congress of the
United States that is going to be the corrective.
Senator HUMPHREY. Indeed, indeed, indeed, the democratic proc-
ess, resolving it by those who are elected and accountable to the
people, and not by judges who are lifetime dictators, accountable to
no one.
The CHAIRMAN. This is fascinating, and I am not being facetious,
but I think we should move on, if we could.
The CHAIRMAN. I understand the Senator from Alabama is will-
ing to yield for 60 seconds to the Senator from Utah.
Senator HATCH. Thank you.
I want to thank my colleague from Alabama. I just want to wel-
come you to the committee, Congressman Jordan
Senator HATCH [continuing]. To tell you that I for one have
missed your presence here in Washington. I remember those con-
ferences. We were opposite each other on a number of occasions. I
just wanted to tell you that we miss you up here.
The CHAIRMAN. The Senator from Alabama.
Senator HEFLIN. Mr. Chairman, I am going to give the words
that everybody in this room wants to hear. I have no questions.
The CHAIRMAN. Well, Congresswoman, before we conclude I just
want to say two things very briefly. There is an old English expres-
sion. It says character brings forth character. And you have
brought it forth in this body when you were here, and hopefully in
the committee the character demonstrated by you will lead us to
have the character to do the right thing.
And I would say that since these hearings have begun, I have
had a dual role, and a dual goal. The first is to see to it that we
move expeditiously, and the second is that we are thorough. I have
not cut off any of my colleagues, nor do I intend to, on either side
of the aisle, particularly from the testimony from such distin-
guished witnesses as we have had this morning.
But I would just point out to my colleagues to be guided by their
own judgment. We have had two witnesses this morning, starting
at ten o'clock. It is now two o'clock. We have a lot of witnesses to
come. If we are going to spend this much time, which I am pre-
pared to do, because I think it is very worthwhile, I just want ev-
eryone to understand there will be no possibility, not that there is
anything chiseled in stone, of us having this before the committee
by October the 1st. And again there is nothing magic about that
date. It is my intention to still finish then.
But I just admonish my colleagues to think about how they wish
this to move. And I apologize. My ranking member may want to
make some comment before we adjourn for lunch.
Senator THURMOND. Mr. Chairman, I just want to say, Dr.
Jordan, we are glad to have you with us.
Senator THURMOND. I remember when you were a member of
Congress, you were one of the most articulate members. I had the
pleasure of serving on the conference committee with you, and I
knew you in other ways. Of course, I differ with you on this nomi-
1066
nation. But I hope you are getting along nicely in Texas and enjoy-
ing your work at the Lyndon Johnson School of Government.
The CHAIRMAN. The hearing will
Senator THURMOND. Just a minute.
The CHAIRMAN. Yes, sir.
Senator THURMOND. And I want to say that we are very glad to
have the Secretary with us this morning. He has done a fine job for
the country, and he is a very patriotic, articulate man. He is
public-spirited. He is a good lawyer. And, although I differ with
him, I have great respect for him. And I just want you to know
that, Secretary Coleman.
The CHAIRMAN. We will recess until 3:15.
[Whereupon, at 2:30 p.m., the committee recessed to reconvene at
3:15 p.m. the same day.]
AFTERNOON SESSION
Senator KENNEDY. We will continue with our witnesses. We wel-
come this afternoon our first witness, the distinguished mayor of
the city of Atlanta, a former ambassador to the United Nations,
and one of the very significant and important voices in the civil
rights movement.
He is no stranger to the Judiciary Committee. He has been a
good friend to many of us here on this panel. We always value his
testimony and we want to extend a very warm welcome to Mayor
Andy Young. We are glad to have you here.
TESTIMONY OF THE HON. ANDREW YOUNG
Mayor YOUNG. Thank you very much, Senator Kennedy and the
committee. It is a privilege, a pleasure and quite an honor to be
here today, particularly on this day.
I would certainly like to be able to concur with the testimony of
Secretary Bill Coleman and Congresswoman Barbara Jordan. But I
come not as a lawyer or legal scholar but as mayor of one of the
United States' thriving cities.
Atlanta is a thriving city, but 30-35 years ago when I left Wash-
ington as a college student, driving back to my home in Louisiana,
Georgia was hardly a place where I felt comfortable, and Atlanta
was not a city that I even wanted to stop in. And yet, in the period
of three decades we have seen the city of Atlanta, the State of
Georgia, and the southern part of the United States move forward
to the extent that I could not only be mayor, but could have served
the Fifth Congressional District of Georgia as a Member of Con-
gress and represented the United States at the United Nations be-
cause of a President elected from Georgia.
All of those things, I think, were possible in large measure be-
cause of decisions that are now being questioned or challenged in
the nomination of Judge Bork.
Senator KENNEDY. Mr. Mayor, would you withhold for a moment
until we swear you in. Please stand. Do you swear to tell the truth,
the whole truth and nothing but the truth so help you God.
Mayor YOUNG. I do.
Senator KENNEDY. Please proceed.
Mayor YOUNG. I come, as I said, not as a legal scholar or lawyer
but as one who has been a benefactor of the activities of the courts
of our land and the laws of our land and that watched a level of
achievement that very few people could have imagined possible.
In the last 5 years we have seen the city of Atlanta attract some
$41 billion worth of new investment and generate more than
400,000 new jobs. We have been able to do this because we have
achieved a kind of level of cooperation between blacks and whites
that has enabled us to get about the business of meeting the
human needs of the region and answering the problems and the
challenge of business growth and development.
But that is not a legacy that we came by easily. It is not a legacy
that we in the civil rights movement could have achieved alone. It
is not a legacy that could have been given to us by the legislatures
of the land, for as Congresswoman Barbara Jordan said, they were
so mal-apportioned and there were so many problems in terms of
registering to vote that I, too, had to run on two different occasions
until the State legislatures were forced by the courts of this land to
reapportion so that the votes could be counted fairly.
But the people who were responsible for those changes were in
no stretch of the imagination liberals or activists when they were
(1067)
1068
appointed. Overwhelmingly most of them were Republican, and
men like Judge Tuttle, Judge John Minor Wisdom, Judge Griffin
Bell, Richard Reeves, Frank Johnson, Bryan Simpson in Florida.
You had men who were courageous enough and visionary enough
to see that the courts of the land had to step in and provide an
opportunity to the rights and privileges of all of the citizens of that
region to be expressed in a nonviolent context.
I would contend that that is a legacy that is still in process. It is
still taking shape and it is a legacy that is still rather fragile and
one that we are not willing to run the risk of tampering with.
In the recent elections, one of the main concerns of the President
was that he would have a mandate from the Senate elections to be
able to transform the courts and to transform the nation as he had
attempted through legislation in the past.
I think the people of the South not only rejected that, but they
gave the Senate a mandate in 1986 that I think is at least as equiv-
alent to the mandate that was given the President in 1984. So I
would hope that the Senate would take serious that mandate and
would realize that the advise and consent functions are critical to
maintaining the kind of balance that we think we need to keep the
progress and prosperity moving in the South.
President Reagan has had the opportunity to appoint 322 judges
throughout the court system. Of those, very few are women and
even fewer are black. I think it is 23 women, five blacks. The diffi-
culty of maintaining the kind of normal progress that we are now
enjoying really is something that I think the Southblack and
whitedoes not want to reopen.
Whatever we did and for whatever reasons we did it, it has
worked for us far better than any of us could have imagined. The
city of Atlanta, for instance, was able to build a mass transit
system and an airport, in large measure because of a whole notion
of sharing in the economic growth and development. Twenty per-
cent of the mass transit system went to minority entrepreneurs
minority and female25 percent of the airport.
That airport and mass transit system have consistently been
under budget and ahead of schedule in terms of their construction.
But the difference is that when we have shared the economic bene-
fits of the South, what we have done is, we have given minority
and female entrepreneurs an opportunity to train people that in
many other places are not being trained. We have our unemploy-
ment level down to about 4 percent, and one of the main reasons
for that, I contend, is that everybody is sharing in the growth and
development.
I contend that one of the reasons for $41 billion worth of new in-
vestment over the last 5 years is that people see in the region a
stability and a calm. They see us having, in a sense, settled the
race question and they see us working together in a very peaceful
and profitable manner.
I think and I fear that the appointment and confirmation of
Judge Bork to the Supreme Court would at least run the risk of
tampering with that. Maybe not in overturning decisions that have
already been cast into concrete, but we are still working on these.
We are still a number of reapportionment cases. We still have
the question of urban versus rural representation. We are still re-
1069
fining the questions of affirmative action. All of those cases are
likely to come up to the Supreme Court and for somebody who
really did not seem to understand what was going on during that
period to be making the final judgments seems to me to be too
great a risk to run.
I think that what we have here is not only the appointment of a
judge, but we have an attempt to transform the Court. And I would
contend that there is no mandate in the 1986 elections to give the
President the power to so completely transform the judiciary that
substantive changes in the lifestyle of the people of the United
States would ensue.
I do not have anything against Judge Bork personally. I do not
know enough law to argue with him. But just listening to him and
reading his opinions, I have the feeling that here is a very amiable
and intelligent man who is extremely well educated but not neces-
sarily wise. And it seems to me that somewhere in this list of quali-
fications, a certain kind of wisdom, a certain kind of sensitivity and
compassion is needed. Because for us, the Supreme Court has never
been just about issues and cases. It really could never be an intel-
lectual feast.
It is about people. It is about Rosa Parks wanting, as a seam-
stress, to sit down in the bus and not have to stand up when a
white man comes on. It is about Charlene Hunter and Hamilton
Holmes wanting to go to school at the University of Georgia. My
own involvement with the Court of Florida was simply a case
where I was trying to walk down the streets in St. Augustine, Flor-
ida and was mobbed by a group of klansmen with the assistance of
the sheriff. I do not see that there are any competing gratifications
there. It was my right to take a walk in a peaceful southern town,
and I do not see where they had a right to beat me up.
But they did. Thank goodness Judge Simpson understood that I
was not the clear and present danger and that the clear and
present danger was mob rule and lawlessness. He also understood
that that mob was not a majority of the South. He understood and
knew by his own involvement in the South that the overwhelming
majority of the people of the South were people of good will who
were glad to break down those legal barriers which had artificially
separated us on the basis of race.
So he suffered some personal ostracism, but he decided that case
clearly in behalf of our first amendment rights. I think consistently
down through the history of the civil rights movement we have
seen those kinds of judges, and those are the kinds of judges that I
think essentially preserve the liberty and the blessings of liberty
that are offered by our Constitution.
I also have a concern aboutwhich I probably ought not get into
because you have already gotten into it some, but let me just regis-
ter itand that is the role of the Congress in such things as the
War Powers Act and such things as intelligence monitoring com-
mittees. I happen to think that Congress has to have a role in those
kinds of issues and I happen to know that Congress has access to as
muchsometimes more informationthan the executive branch,
and that the information which comes to Congressmen and Sena-
tors from their constituents who have served around the world as
missionaries and as professors and as business persons can be every
86-974 0-89-36
1070
bit as accurate and often is more accurate than the kinds of studies
that the executive branch gets from the traditional intelligence
gathering agencies.
But finally, I think, it can probably all be summed up for me in
terms of what the Court means to people in the South, in the
Montgomery Improvement Association, when every redress locally
and politically had been exhausted, when it looked as though the
Montgomery Improvement Association was going to have to close
down its doors, when it looked like 381 days of nonviolent preach-
ing and teaching would be a failureon that very day that Martin
Luther King was about to announce that he would have to give in
to this injunction, the word came down from the Supreme Court
that busses in Montgomery, Alabama, had been desegregated.
And one good sister in the church just jumped up and shouted,
"Great God almighty done spoke from Washington."
I think that is what we have come to expect from the Supreme
Court. We have come to believe that in the Declaration of Inde-
pendence that all men and women and children are endowed by
their creator with certain inalienable rights. And we see the Su-
preme Court as the final protector and guarantor of those rights.
And a Supreme Court that is intellectualizing about those rights,
or a Supreme Court that does not understand the passion and an-
guish of people whose rights are being denied is a Supreme Court
which really does not live up to what I think the American dream
is all about.
I agree with Congresswoman Jordan and Secretary Coleman that
Judge Bork runs the risk of tampering with that Court and certain-
ly changing the tone of debate in that Court, and I do not think
that is good for the country and I would hope that you would not
confirm the Judge.
1071
CITY OF ATLANTA ANDREW YOUNG
CITY HALL rLANTA GEORGIA3O335 MAYOR
404 527-7000
September 21, 1987
TESTIMONY OF THE HONORABLE ANDREW YOUNG, MAYOR OF ATLANTA, BEFORE THE

JUDICIARY COMMITTEE OF THE UNITED STATES SENATE ON THE NOMINATION OF JUDGE
ROBERT BORK TO THE UNITED STATES SUPREME COURT.
MR. CHAIRMAN, MEMBERS OF THE SENATE JUDICIAL COMMITTEE, OTHER MEMBERS OF

THE UNITED STATES SENATE, LADIES AiMD GENTLEMEN.
My name is Andrew ioung. 1 am not a lawyer or a legal scholar, but I

appear before you today as one whose lifeworK and career exist because the
legal views and legal philosophy held by this nominee are not the law and
policy of this nation.
With the Chair' permis I will subnut a prepared text for the record.
I am presently the Mayor of Atlanta. Atlanta is a proud city and I am

proud to be its mayor. But we know in the most important sense that
Atlanta is not unusual. Atlanta is what this nation should be about, l
strives to be what all great American cities strive to be -- a living
example of tne goals and ideas that the Founders of this country held
dear.
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 the
past three decades. Today, I can be Mayor of Atlanta. Yet just a few dec-
ades 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 m 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 environ-
ment, expanding our economy, educating our youth and opening the door's of
opportunity for all of our citizens. In the past five years alone, Atlanta
nao attracted more than $41 billion worth of new investments, created
400 ooo new jobs and reduced the unemployment rate to 4.156. We have
achieved this progress because of a spirit of cooperation between blacks
and whites, an expectation of fairness, and an environment that encourages
everyone to participate in the city's growth and prosperity. But in all
honesty, I must say tnat this spirit of cooperation and fairness and this
economic and social prosperity is by and large a contribution to our city
from the federal judiciary.
I opeak m opposition to Judge Robert Bork today, not because of any ani-
mus or ill will towards him -- he is reputedly an amiable man nor out
of any disrespect for his obviously keen intellect. 1 speak in opposition
to Judge Bork Decause I view the Supreme Court as the protector of the weak
and the underprivileged, the voice of justice for the oppressed, the
salvation of the minority against any temptation to tyranny by the
majority and everything I have read or heard indicates that Judge Bork is
a protector of privilege and power rather than opportunity and freedom.
It is clear to me trom studying Judge Bora's public record that he is not

a product of the near-center or mainstream of national legal thought. Much
of his legal philosophy in iact defines the far extremes of the ideologi-
cal spectrum.
1072
It u not enough to try now to rationalize this philosophy as the idle

work of a theorizing professor. I'here are distinct patterns; there is a
zeal and passion to a dogmatic point ot view that would dishonor truly
intellectual academic endeavor. His views have been consistently and
publicly stated over a sustained period. They are not taken out of contex-
tual, abberational or isolated occurrences. These views are profoundly
disturbing and m my judgement would be disastrous at this period ol our
history on the lives oi the people of this country if they were to become
the law of our land. Many of his attributed views tear at the very iaDric
of the Constitution as first spun in Philadelphia 200 years ago and as it
matured in the richness and trauma of our national political life since
that time.
1 would like to reflect momentarily with you on the Senate's historic role
in this particular nomination.
I have heard ~ome argue that the Senate's role in this inquiry is a par-
ticularly limited one. That by "advice and consent," the Senate must deter
to the President's nomination in respect for the popular mandate he was
given in 1980 and 1984 to appoint Supreme Court justices in his own image.
This argument further states that the nominee s ideological perspective on
the Constitution, law and national policy is irrelevant to the Senate
inquiry, which should basically locus on his health, his integrity, and
his professional competence as a lawyer and a scholar. 1 disagree with
th-Lb view and I believe that the weight ot historical judgement disagrees
with this view.
Our forefathers in Philadelphia created an ingenious living document in

our Constitution, a weave of delicate checks and balances, shared powers
and responsibilities, and limits on state and national government intru-
sions on the tundamental liberties of each citizen. Those shared powers
and re^ponoibilities ebb and flow as they are exercised over historical
periods and their relative strength is a reflection ot the current
national consensus as expressed m the electoral process. This reflection
occurs not only m the presidential elections every four yearo, but m the
election of a third of you Senators every two years and the House oi
Representatives every two years.
As we now celebrate the Constitutional Bicentennial, we have all read and

heard much about the debates and process in Philadelphia in 1787 by which
the core document was created, and what the living document has come to
mean in 200 years of national life. We nave all probably noted the
historical tact that the framers had originally drafted and adopted a
document that gave the election of Supreme Court justices solely to the
Senate, but in the latter days ot that hot summer, they tempered and
compromised the original thought by assigning to the President the
"nomination" of justices and assigning to the Senate the "advice and con-
sent" function.
Present day doubters of this partnership ignore our national history. In

point of tact, this body has rejected or forced withdrawal ot 27 Supreme
Court nominees -- or approximately one in every five.
It 4.S important to emphasize that our core governing document thus created
a partnership ol responsibility, to be jointly exercised, and that it is
theretore inconsistent to argue that this somehow prevents you as Senators
from inquiry into the basic legai views and philosophy ol a nominee.
Similar shared powers are explicit in other critical functions of our
national government. No one argues that even though the Constitution
assigns to the President the power to negotiate and submit treaties that
the Senate in its "advice and consent" role may not inquire into the
merito of a particular treaty. The Senate must consider all the various
aspects of a particular nominee to the Supreme Court that the President
must consider. It is after all a partnership of responsibility and shared
constitutional functions, each partner must respect the perogatives of the
other political body.
These doubters ignore the recent historical parallel m 1966 when a

Democratic President m his final year of office nominated Justic Abe
Fortas to become Chief Justice, and members of his appointive partner in
the Senate explicitly asserted their role.
As Joseph Califiano pointed out in a recent editorial in The_New_York_

T_imes, then-Senator Howard Baker said, "In resolving the question ot con-
firmation, the Senate must consider ...their social, economic, and legal
1073
philosophies; and the wisdom and desirability of the appointments at this

particular time." Califlano also recalls that the current senior minority
member ol this Committee, its chairman in the last Congress, Senator Strom
Thurmond argued that it was each Senator's, "responsibility tor assessing
the wisdom ol the appointment." Senator Thurmond stressed at the time
that, "a man's philosophy, both his philosophy ol' life and nis
philosophy of judicial interpretation, are extremely relevant."
1 am not trying 10 dimmish the importance m this process of Ronald

Reagan's presidential victories in 1980 and 1984, because those victories
represented some measure of national will at each given time. But this is
not 19b0 or 19o4, this is 1987 and we are fast approaching the linal year
01 the Reagan presidency. We are already engaged in the early stages ol
the next presidential race.
In 1986, the most recent national election year, President Heagan went to
state after state in election alter ejection and explicitly pleaded with
the American people to maintain a Republican Senate in order to ensure his
capacity to nominate Supreme Court justices in his image. President Reagan
urged the American people to restate his particular mandate by retaining a
Republican majority in the United States Senate.
The American people opoke in the 1 yt(6 Senatorial elections, turning the
President's Republican Senate majority into a signiileant minority.
I make this important point not as a Democrat gloating over the new align-,
ment 01 this body, but instead to emphasize that the will and mandate 01
the people expressed in I90O and 1984 must be tempered with the will and
mandate ol the people expressed in 1986.
It is especially important to consider the consensus ol the American

people as it relates to this particular nominee because today's Supreme
Court is so closely divided on a variety ol important Constitutional
issues. Judge Bork's philosophy on these issues would likely oe pivotal m
determining the majority view on a split court. In the final analysis, you
as Senators must only confirm a nominee who is clearly j.n line with the
stated consensus of tne American people, for it is those very people who
you are elected to represent.
With the nomination of Judge Bork, Ronald Reagan is clearly attempting to

to transform the Supreme Court ol the United States as he has attempted to
transform the entire appointive American judiciary during his two terms as
President. The nomination ol Judge Bork is but a continuation of the 322
lifetime judicial appointments made under this administration. President
Reagan has appointed two Associate Justices to the Supreme Court and ele-
vated one Associate Justice to Chiet Justice. He has appointed nine judges
to specialized courts that handle patent and trade matters, 69 judges to
the 12 regional federal appeals courts and 241 judges to the federal
district courts. These appointments, which included only live blacks and
23 women, are extremely significant, because the lower federal courts are
most often the final arbiters ol disputes. Just over 1UU cases per year
are decided by the Supreme Court, while thousands ol cases are decided by
the lower tederal courts each year.
In light ol the 19fci6 election, the nomination of Judge Bork is clearly an

attempt to overplay this President's perogatives within the balance between
the power of nomination and the power of "advice and consent."
Some have cited our national experience during the presidency oi Franklin
Roosevelt lor a variety of supporting propositions during this debate.
After considerable thought, however, 1 feel that experience is a com-
pelling illustration ol the point I am making.
When President Roosevelt was first elected in 1932, he enjoyed only a

relatively small percentage of Democrats j.n the Congress of the United
States. It was in this political context that FDR lirst embarked on the
ambitious legislative agenda known as the New Deal. President Roosevelt
was stymied in his effort to bring this country out of depression by a
Supreme Court which refused to recognize that the commerce clause
empowered the President and Congress to legitimately lashion much ol that
day's New Deal legislation. In response, President Roosevelt tried
to enlarge the Court in his 1937 court-packing pj.an, which the Congress
llatly relused.
1074
In the subsequent elections., however, Roosevelt wao re-elected along with

massive numbers ot Democrats who eventually iormed a huge majority in the
Congress. These elections reilected a continual national consensus of
thought and allowed Roosevelt and the Senate to appoint Supreme Court
justiceo reflective ol that national consensus..
It was clear that unlike today, the Preoident and tne Senate by then
shared a view of the national will and consensus and responded through
nomination power and the power of "advice and consent" accordingly.
Transforming the supreme Court was never conceived to be accomplished at
the will ot a President alone.
Reagan's present attempt at transformation of the Supreme Court is like

Roosevelt's early attempts at transformation, it is oimply not reflective
ol a clear national consensus ot thought.
in that light, this body has an especially significant function in the

"advice and consent" role. You should not approve a nominee for Lhe Court
I rom the far1 fringes of legal thought and philosophy when there are
strongly conflicting signals of the national will. Instead, you should, in
my judgement, recognize these conflicting signals as a mandate tor you and
tne President to chart a mainstream, centrist course of national policy
and directive.
I also see no reason to press forward with the approval of Judge Bork
simply to till the vacant seat on the Court. Rather than force the trans-
formation ot the Court at a time ot ill-defined national will, it is tar
better tor the seat to remain vacant until this President or the next one
submits a qualified nominee who is more representative of the mainstream
01 American political thought.
Should the President fail to present an acceptable choice to the Senate,

hio partner n the appointive process, the history of the Court shows
clearly that it has been able to function successfully at various times
witn both a greater and lesser number ot justices.
In those rare cases where a majority could not be reached without a ninth
justice, it is better to postpone radical changes in constitutional
doctrine. It is Detter for the nation to avoid narrow five to f'our deci-
sions on landmark issues ot constitutional doctrine when the fitth vote
might come from a transforming justice who comes trom the far lringes of
legal thought and philosophy at a time when no clear mandate exists from
the people.
Let me now discuss brieily several specific areas of Judge Bork's record,
specitic views he has expressed both on and oft his current judicial post,
that I find deeply troubling and clearly indicative that his position is
on the tar extreme lringes of American legal and political thought.
The record as it exists demonstrates that Judge Bork has consistently been
squarely against those Supreme Court decisions which have contributed so
signiticantly to the evolution of the prosperity and goodwill that exists
in the City ot Atlanta today. The same can be said lor Birmingham,
Jackoonville, Charlotte, Little Rock, Dallas and many other areas both in
and out of the South.
Judge Bork, in Senator rieilm'^ characterization last Wednesday, seems to

require a carrot betore his eyes belore he can take a step forward. He is
no doubt a very educated man, but he has not been a wise man. Back in the
sixties, many ot Lhe judges within the old Filth Circuit were thankfully
heroic and wise men. lhey were white male Southerners, many ot who were
appointed during the Eisenhower years, some ot whom were self-styled
conservatives. These men -- men like Elbert Tuttle, Bryan Simpson, Frank
Johnson, Grift in Bell, Richard Rives, John Minor Wisdom -- and I don't
mean to overstate it, -saved the country by giving meaning to the
Constitution. These men were not "judicial activists" except to the extent
that they preserved and protected the rights ot the people embodied in the
Constitution. They did not mask their decisions or philosophies in
meaningless sophistry about the "original intent" ot the framers, but
implemented what was in fact a living Constitution.
1075
Given the numerous conversions to which he now attests in confirmation,

perhaps Judge Bork uould even concede that he has not shown sucn wisdom in
his view ot the Constitution over the years tor so many specific matters.
I do not believe e should appoint to the Court a man who has demonstrated
that he does not have the vision to see the rxght and proper course of the
significant issues of the day either before or as they are occurring.
Iheoe hard, important cases cannot be decided as they occur with the bene-
fit Oi Judge Bork's surer-sighted hindsight.
Senator DeConcini asked Judge Bork Wednesday to assume that if he were

black, and that he had heard his many expressed statements in the area ot
civil righto over the years, whether he would be concerned with this
nomination. Judge BorK answered by oaymg that he had a good civil rights
record.
I'he tact of the matter is that the record is replete with examples showing
that Judge Bork has always been on the negative side of the ledger by some
theory or rationalization that may for his purposes suit the moment. There
is nothing m his public record to suggeot that his core attitude toward
tne equal participation m our society Dy blacks, women, Hispanics, or
others is anytmng but hostile. He asserts that he is not a racist or a
bigot. If he were confirmed and continued to judge m the pattern of his
expressed opinions over the years, it would be much more devastating to
the realization of an America of, "life, liberty and the pursuit of hap-
piness," for all, than all of the Bull Connors of the world and their dogs
combined.
It is the kinds of advances which he has consistently opposed, such as the

1964 Civil Rights Act, open housing laws, protection 01 voting rights,
dismantling ot poll taxes and literacy tests, afiirmative action and equal
rights tor women and minorities that nave been the essential building
blocks on whicn the foundation of Atlanta's growth and prosperity have
rested.
Had Judge Bork's truncated view of the First Amendment prevailed, Dr.
Martin Luther King, Jr. would not be a venerated national hero he would
instead be serving a jail sentence in Alabama and the non-violent method
of social change might never have lound root on American soil. Had Judge
Bork's view on personal t'reedom prevailed, the Public Accomodations Act
would have never opened the doors ot the hotel and convention industry
which is now Atlanta's lifeblood and the city's largest employer. Had
Judge Bork'o view of affirmative action prevailed, the City ot Atlanta
would not have been able to set up our Minority Business Participation
Program which has enabled us to construct the world's largest airport,
under budget and ahead ot schedule, with 25% minority contractor par-
ticipa'inn. Had Judge Bork's restrictive interpretation of freedom of
speech and the Fourteenth Amendment prevailed, 1 might have been branded a
terrorist and jailed lor my participation in the civil rights movement
instead of becoming the urs t black elected to Congress from Atlanta in
more than 100 yearo.
Had Judge Borx's view of the Constitution prevailed over the past thirty
years, my city would not be a city too busy too hate, but a city too
oppressed to create.
1 also t nid appalling and disingenuous Judge Bork's repeated rejection of

the long standing notion that the Fourteenth Amendment includes the fun-
damental rights of "personal liberty" and "privacy." He has agonized in
his testimony about where a right of privacy is found in the Constitution.
As a non-lawyer, 1 do not pretend to be a student of the nuances ot
constitutional law, but what is liberty as a core value of the
Constitution 11 it does not embrace personal privacy?
It Judge Bork is confirmed as a Supreme Court justice, I fear possible

reconsideration of such cases of long standing as the right of married
people to use contraceptives; the right of chicken thieves not to be
sterilized; the right to be taught loreign language; even the right of a
grandmother to live with her1 children, even if her neighbors disapprove.
What is also particularly troubling for me in accepting Judge bork's

current professions ot moderation and his embracing "judicial restraint"
1076
as a rhetorical description ot his philosophy is his legal activism in

tact and abandonment of any reliance on "original intent" when it comes to
other areao of the law that those shallow, r^gid concepts simply do not
fit. for example, Judge Bork has been vigorously hostile to the shared
consitutional balance between the executive and legislative branches. The
overwhelming dominance he finds lor the executive has no pretence ol
rationale based on "judicial restraint" or "original intent." If plain
language of the Constitution were to control, the result would be dif-
ferent. He has abandoned these doctrines in this area for a good reason:
the facts are not supportive -- the framera were of course extremely wary
of a strong executive after the war with King George.
Judge Bork not only argues that in many areas of some Congressional role,
there is a preference for the position of the executive; he also goes
further and argues that in his view of the Constitution, Congress is,
actually prohibited from acting in other areas. As a former Member of
Congress, I would hope that you as Senators would particularly view these
attitudes with alarm.
One may argue about the merits of any one specific issue in isolation, but
again the pattern of his attitude should give us all concern.
Speciiically, Judge Bork has at times argued that the War Powers Act is
unconstitutional, that it is unconstitutional for the Congress to restrict
the President from invading a country with which we are not at war and
that it is unconstitutional for Congress to adopt a charter for the CIA.
He has also held that it is unconstitutional for Congress to require a
judicial warrant before the executive branch undertakes electronic sur-
veillance of American citizens to investigate security matters, as Judge
Grit tin Bell in 1978 successfully championed during the Carter years. He
has said that it is unconstitutional for Congress to adopt a "special
prosecutor" law to provide for the independent investigation of allega-
tions of criminal actions within the executive branch, that it is
unconstitutional tor Congress to adopt legislation implementing Fourteenth
Amendment rights and that it is unconstitutional for Congress to authorize
Congressional standing to initiate Court challenges to unlawful presiden-
tial interierence with Congressional perogatives.
There are many other areas of the record that should and will be explored
by others I hope in detail.
About the only thing which I have read m which 1 agree with Judge Bork is
that he is neither a liberal nor a conservative. He is neither -- he is an
extremist whooe zealous dogmatic view of the world allows him to travel
many rationalized paths to his negative ends.
Gentlemen, there are those who rightly point to tne charm, wit and
brilliance of Judge Bork, and i am sure that he is an outstanding teacher,
lawyer and jurist. By all normal considerations he certainly deserves con-
firmation, but I am asking you to deny that confirmation to the highest
court in our great nation, because with all the brilliance, there seems to
be little compassion or vision within this man.
The Supreme Court is not primarily about principles or cases, it is about

people, ordinary people like Rosa Parks, a seamstress trying to ride the
buses of her native Montgomery; Linda Brown, a child in search of an ele-
mentary education; Charlayne Hunter and Hamilton Holmes seeking entry
into the University of Georgia; or a chamber maid against a hotel chain
and laundress in a sweat shop work environment as Ted Koppel and David
Brinkley so graphically reminded us on the ABC special, the Blessing of
Liberty.
For all his brilliance. Judge Bork has never used his legal mind on behalf
of "the least of these, God's children," who are too poor to run for
public office and whose poetic eloquence could not make the editorial
pages because of imprecise grammar and spelling.
To these ordinary Americans of all races, creeds and gender, Judge Bork
speaks not ot justice or even mercy but instead ot, "competing
gratifications."
1077
It xs my contention that this reflects a basic misunderstanding of what

America is all about. America is about an economy which has flourished and
expanded as it has opened the doors of opportunity for the poor, the
immigrant and the oppressed, it is not a closed order of "competing
gratxiteat ions."
The South represents an example of expanded progress and prolit as it has

become more racially inclusive. The rights, and privileges of the majority,
we have seen, are dramatically increased by the end of racial strife.
The Declaration of Independence prophetically proclaimed that, "all men are

endowed by their creator with certain inalienable rights," and even though
our founding lathers could not lace the question of slavery at that
moment in history, they opened the door to Constitutional evolution by
ending the slave trades 20 years hence.
History and technology are propelling us at Dreak neck speed into a

challenging, awe-inspiring and even frightening future. The Supreme Court
must be visionary and courageous as vve seek to "preserve liberty tor our-
selves and our posterity."
1078
The CHAIRMAN. Thank you very much, Mr. Mayor. I only have
one brief question and then I will yield to Senator Thurmond.
Your statement, because of your experience, is obviously a com-
pelling one: But I would like to ask you about one aspect of the
statement, and only one, and that is that you make the point, as I
understood itcorrect me if I am wrongthat it is not merely
whether or not he would go back and undo things, but that there is
much left to be done. And part of what is left to be done still has
not been poured in concrete in the law.
For example, affirmative action, the continuation of issues that
will arise about the accommodation of the rights of minorities
Blacks in particular, but all Americansthat are going to come up
in the future. Is that the point you are making?
Mayor YOUNG. It is. But I was trying to make the point that the
victories of the South and the progress of the South, the $41 billion
worth of investment in the Atlanta area is not going just to black
people. There is a level of progress and prosperity in Atlanta and
Birmingham and Jacksonville and Tampa that could not have been
imagined in a segregated society, or in a society where the race
question was still a matter of contention. It is the fact that it is
settled for all practical purposes, which makes this possible.
And yet, even as we say it is settled, with more and more
womenwomen heads of households, women starting business,
more and more women and children being in poverty, we are find-
ing that we have got to use our affirmative actions statutes at the
city level to encourage women to be entrepreneurs. And we have
createdset aside for female entrepreneurs to give them a chance
to get into the mainstream of the economy and it is working for us.
The CHAIRMAN. I think theand I will conclude with thisthe
point that I have heard you make before, you have made to me per-
sonally, you have made publicly, you have made here again, that I
think is worth noting in the record, that notwithstanding what
non-southerners and non-border State folks think, that, in my
viewand the point you are making, I thinkis that the South is
well within the mainstream of America on race, and quite frankly,
in my view, in many ways ahead of the rest of the nation on the
issue.
Mayor YOUNG. Well, we have had to struggle with the problem
and we have not been able to escape it. But we could not have done
what we have without a court system.
The CHAIRMAN. I yield to my colleague from South Carolina.
Thank you.
Mr. Mayor, we are glad to have you here. We are running so far
behind I am going to forego any questions.
The CHAIRMAN. Thank you very much. Senator Kennedy.
Senator KENNEDY. Mayor, I think you have made an extraordi-
nary, eloquent statement and have brought back those times in the
early part of the 1960's when the protections of the first amend-
ment for Dr. King, yourself, and many other courageous people,
white and black alike in the South, were really being tested with
nonviolent demonstrations to protest laws which had existed on the
books in many parts of our country that separated the races.
1079
I imagine one of the feelings that you have today is for the im-
portance and the significance of the enhanced first amendment
rights guaranteed under the Constitution and the power those
rights had in preserving nonviolence in our society and how they
permitted you and others to be able to raise the specter of the laws
which discriminated against individuals on the basis of their skin
color.
Do you believe, having gone through that period, and looking
down the road in terms of the future, that we should risk placing
someone on the Court who, it certainly would appear, both in
terms of statements and speeches, to have a more cramped view of
the first amendment than has been accepted by the current Su-
preme Court. Would you be concerned about that as well?
Mayor YOUNG. Well, I would, because some of the things that
have come from Judge Bork, some of his theorizing about the first
amendment, Bull Connor would not have even considered. The
notion that Martin Luther King would not have the right to stand
up and advocate the deliberate violation of an ordinance in order
to test its worth in the courts, and the advocacy of doing that, I
think is frightening. We never had any problem from the Bull Con-
nors until we actually got out and confronted their authority in the
streets.
I think Judge Bork's intellectual threat is that it is a kind of a
game with him, it seems, to the lay person looking on from outside.
It is a game being played with other people's lives, and to think
that we would not have been able to give the kind of aggressive
non-violent leadership during that period is, to me, also frighten-
ing.
Senator KENNEDY. During the course of the examination of
Judge Bork, I reviewed in some detail his opposition to the Shelley
v. Kraemer, the restrictive covenants decision; the position that he
took in terms of the poll taxwhere he was not aroused about its
discriminatory features either on race or against those that are ex-
periencing poverty; the one man, one vote decision, which he op-
posed; the striking down of the literacy test, which he opposed, and
the whole range of different questions. Many of us saw in the
period of the 1960's a number of measures really discouraged mi-
norities and poor people from being able to involve themselves in
what was the most basic and fundamental right of all, and that is
the right to vote and participate in the democracy.
We have discussed his opposition to the public accommodations
law. Dr. King and yourself were here, it was August of 1963, when
he was the author of that article opposing that particular provi-
sion. But the whole focus in the country was on this issue. And also
on his willingness to oppose those provisions that require equality
in employment.
Now much is being made in terms of whether you are talking
about mainstream or not mainstream. But what would Atlanta
look like today if his position had been sustained in each of those
areas, and what would it mean in terms of the New South, which
you so eloquently speak to, if his positions had been the majority
positions in the courts?
Mayor YOUNG. It is frightening to even anticipate it, but if non-
violent leadership had been restrained or jailed, it would not have
1080
been an end to it. These rights are inalienable. We are endowed by
our creator with those rights. All Americans, black and white, have
come up believing give me liberty or give me death.
It would have produced a kind of turmoil that is unimaginable
now. And I hesitate to even go back and think about it, because I
think we are beyond it. But we clearly could not have had a con-
vention industry employing 81,000 people in Atlanta. We even
would not have had people investing in those kinds of hotels to
make possible a convention industry. Money is coming to the
United States, and one of the reasons our economy has been able to
survive is that the one asset that we have in competition to the
rest of the world is we have stability and security.
I say that economic stability and security in the United States
rests on a constitutional framework that has been interpreted by a
court that has been sensitive to the trends of history and to people.
And it is not enough to say you are right 10 years late.
What you need is somebody sensitive to what is going on at the
time, because these are important decisions. In fact, I have got to
get back home because I am being picketed now. I have been sued
under the 14th amendment and found guilty interestingly enough
because an administration that is predominantly, well half and
half, black and white was charged by a young white male with dis-
crimination because we hired a white female. And the federal
courts extended to him the protection of the 14th amendment.
And I did not like to admit it, and fortunately they did not find
me personally guilty. But when you come right down to it, these
human rights' amendments are vital to the American way of life,
and it is much better for the government to be restrained in rela-
tionship to abuse of individual rights and freedom than for any
government, however well intentioned or honorable as I think
mine is, to overrun the rights of a single individual. That is what
America is all about.
Senator KENNEDY. What you are basically saying is that we
should not take a risk with an individual who may reopen old
wounds and force us to refight old battles, when we thought we
have made progress to make this a better land and a better coun-
try in these past years. We should not risk someone who has taken
serious exception to those landmark decisions which have really
struck at the core of racism.
The Senator from Pennsylvania.
Mayor Young, I have read your 10-page statement, and I believe
I understand the considerations that you are raising, and I am
going to be very brief because we are falling way behind and we
are trying to maintain an October 1st date, but just a couple of
questions.
In your testimony, you refer to a suit by a young white man
suing you under the 14th amendment. The statement shows that
you are familiar with Judge Bork's philosophy, and you may know
that in his writings he said that the 14th amendmenthe said that
the framers was to have it apply only to blacks.
Now if Judge Bork were correct on that and had adhered to that
view, you would have been immuned from suit by that young white
1081
male. Would that make any difference on your opinion of Judge
Bork?
Mayor YOUNG. Well, no, because I think we probably deserve to
be sued. At least, he thought we deserve to be sued. And I think it
is betterthe purpose of the Constitution, it seems to me, is to re-
strain government from taking advantage of people. And I think
there is at least a measure of doubt in my mind that, though we
thought we were operating without discrimination, that there pos-
sibly was some level of discrimination there, and the courts so de-
cided. And we just decided not to appeal.
Senator SPECTER. I thought that would be your position, and I
understand it.
Did Judge Bork's position make any difference to you last week
when he said that he would accept the clear and present danger
test as the freedom of speech, and that as a matter of settled law
he would accept the application of equal protection of the law to
apply not only to blacks and to ethnics, as he put it, but also to
women and indigents and illegitimates?
Mayor YOUNG. It does, except that it does not answer my ques-
tion, which is, you know, it is 20 years after the crisis. And I do not
know that it helps very much to take this long. In fact, the thing
that disturbs me is that none of these things was said before Judge
Bork was nominated. And so it is a kind of a, you know, confirma-
tion conversion.
And so we as preachers are always glad to see people converted,
but you do not get converted and become the pastor of the church
the next day or the archbishop the day after. There ought to be a
little time to see what the conversion is all about. And I just ex-
press reservations about that.
Senator SPECTER. The only point in your prepared statement that
I would ask you about would be the reference you make to the vic-
tories by President Reagan in 1980 and 1984, and let us say that
they ought to be tempered by the loss of the Senate in 1986. And
then you refer at page 5 to President Reagan's present attempt to
transformation of the court. Like President Roosevelt's early at-
tempts of transformation, it is simply not reflective of a clear na-
tional consensus of thought.
It seems to me that Supreme Court nominations really ought not
to turn on election victories, not that the will of the people is irrel-
evant, but that the constitutional framework of our government is
to protect minorities from the majority, and that there ought to be
a more restraining influence in constitutional doctrine.
At least speaking for myself, that is what I have looked for in
terms of whether Judge Bork fits within the tradition of constitu-
tional jurisprudence, which is a protection of minority views, and
that the critical question does not turn on who won the election
and by how much or the Senate election, but really on the tradi-
tion of U.S. constitutional tradition, which, as I say, emphasizes
protection of minorities. Would you care to comment on that?
Mayor YOUNG. I said, as I began, I am not commenting as a
lawyer or scholar. I am a politician though. And I happen to be-
lieve that elections and the Constitution are about the way power
is defined. And while we want to keep the Supreme Court as neu-
tral as possible, when you get to critical times like this where a
1082
series of historic accidents, you might say, or maybe deliberate po-
litical action ended up taking Judge Tom Clark off the court, and
Judge Goldberg going to the United Nations, and Judge Fortas not
being confirmed.
You know, three strong judges that might be around and, if that
were the case, it might be different today. But the thing that
makes this so critical is that in the context of 322 appointments a
transforming appointment on the Supreme Court, to have someone
who is at least up until the time of confirmation extreme in his
views to me makes it a political event.
I think the President made it political, and I think the Senate
has a responsibility and an obligation to respond politically.
Senator SPECTER. Well, Mayor Young, if it turns on politics, then
it might well be that the President has the prerogative of naming
his man. If it turns on advise and consent function with the Senate
being concerned about minority rights, then there may be a differ-
ent conclusion depending on how we ultimately read Judge Bork's
constitutional jurisprudence on equal protection in the first amend-
ment.
Mayor YOUNG. I think though that I tried to say that
Senator SPECTER. I am a member of the Senate Minority, you see.
So it turns around a little bit for me.
Mayor YOUNG. But I would hope that Secretary Coleman ad-
dressed your legal concerns far better than I could. I am only quali-
fied to talk politics, and I may not even be qualified to talk that.
Senator SPECTER. Well, I understand your point, and I thought it
worth pursuing just for a moment or two, but you cannot keep poli-
tics out of it entirely. But to the extent you can, I think it is highly
desirable, and that is why I focused on the constitutional tradition.
Thank you very much, Mayor Young.
Senator KENNEDY. The Senator from Ohio, Senator Metzenbaum.
Senator METZENBAUM. Mayor Young, back in the 1960s you were
very active in the civil rights' movement. It is now 20, 25 years
since those very active years.
I would like your candid and frank evaluation as to what the
blacks of the South or the North, are saying about this nomina-
tion? What they are doing? Is there a degree of apprehension? Is
there an indifference? Is it a non-issue?
I hear different reports. You are the mayor of a major city in the
South, and you have been part of the mainstream of the civil
rights' movement in this country. I hear that some churches get ex-
cited about it, and some do not.
I wonder if you are in a position to give us an honest appraisal
as to whether blacks are very much concerned about this appoint-
ment, or whether there were just some prominent spokespersons
who were saying they are excited about it.
Mayor YOUNG. I think that it is very hard for me to be objective
about it. I would say that if you are talking about racial stability
and security, that both blacks and whites want to maintain it.
I think that black citizens tend to be a bit more anxious because
the Supreme Court has been literally the voice of God for us for so
long. So it is a very critical issue.
1083
I think that it is hard for people to dissect the kind of legal
debate that has been going on with Judge Bork last week, where it
is a discussion of footnotes and cases. We do not see the courtI
mean, we do not see this as a legal struggle. We see it as an in-
tensely personal struggle, a struggle for survival and for continued
coexistence and the right to keep on as we are going.
But I do not think there is a great deal of difference. It probably
breaks down on a variety of issues rather than by race. I think
those that are concerned about the civil rights' issues are intensely
concerned. There are probably some that are concerned about
other privacy issues that have a different kind of concern.
But I would say that on the kind of testimony that I have ad-
dressed, there would be pretty close to a majority consensus across
the South that things are going well, let us keep them going well.
Senator METZENBAUM. And you say there is a majority consen-
sus, among blacks and whites alike, that the cooperative relation-
ship presently existing might be harmed if Judge Bork were on the
Courtor am I misreading your statement?
Mayor YOUNG. I think that is our fear that one or two court
cases toppling the other way, could reintroduce a kind of polariza-
tion that we desperately have been struggling to put behind us.
Senator METZENBAUM. Actually, the thrust of my original ques-
tion was the degree of concern that you are aware of, if you know,
in the black community.
Mayor YOUNG. Well, I think there is a tremendous concern, and
I have not been to a single gathering where this issue has not been
discussed, and where "turn back the clock of history" language is
usually used.
Senator METZENBAUM. Thank you very much.
Senator KENNEDY. Senator Humphrey.
Senator HUMPHREY. Another choice of titlesis it Ambassador,
Mayor or Reverend?
Mayor YOUNG. Mayor is fine.
Senator HUMPHREY. Mr. Mayor, you have pointed out with great
eloquence the astounding progress in Atlanta and throughout the
South and indeed in our country in recent decades, all of which is a
matter of great satisfaction to every American citizen.
But sort of implicit in that is the suggestion that somehow
Robert Bork would block that kind of progress. You have not said
that, but that is sort of implicit in your statement, it seems to me.
I simply want to reiterateand frankly, that is all we are doing
this week, as far as I can, is reiteration. I have not heard a new
issue raised or a new facet explored this week.
But nonetheless I want to reiterate that as judge, and on that
basis primarily, we ought to evaluate Robert Bork s capacity as a
Supreme Court Justice, and on the basis of his record as a judge in
the DC Circuit Court. He has had a fine record in the area of civil
rights, equality for women and blacks and minorities, and even
before that as Solicitor General that he filed amicus briefs in, I
think it was, 15 or 17 cases where he wanted to expand or apply
more broadly the coverage of various civil rights' statutes, and in
many cases the Supreme Court would not go along with him. He
wanted to apply them more broadly than even the Supreme Court
was willing to do.
1084
So I just want to clear the air on that point. It seemed to be an
unspoken suggestion there. I do not know if you meant it that way,
but that is sort of the way that it came across, that Robert Bork
and those who believe that judges ought to be very careful to find,
to divine, if you will, the true intent of the framers or the legisla-
tors or the democratically-elected members when resolving cases
that they are somehow enemies of this kind of progress, which has
been so beneficial to our whole society.
Yes, of course, Robert Bork has changed over the years, as have
many members of this committee and as have you, Mr. Mayor. I
know you have probably made a few statements as a passionate
man that you would probably would phrase in other words at this
point, expressed a few thoughts you wish you had not expressed
some years ago. We all do that.
And I want to quote from a Wall Street Journal editorial of a
few days ago, which makes the case rather well in this respect. "As
a student of the University of Chicago, he, Bork, made the conver-
sion from mild socialist to enthusiastic democratic capitalist. At
Yale he moved from pure libertarian to the founders' view of or-
dered liberty under the rule of Constitutional law." Yes, of course,
he has matured.
I find it unfortunate that his critics almost exclusively focus on
his statements and his writings of 20, 25 years ago, and would have
us ignore completely his record as a judge and Solicitor General. It
is unfair on its face.
Mr. Chairman, we have been on this panel, including recess, for
6 hours. I guess that works out to about 5 hours. We have another
panel. If we were to spend 5 hours on the next panel we would be
here until 9 o'clock tonight, not counting recess time, so I am not
going to ask any further questions.
I think out of fairness we ought to give the next panel as much
time as we can. Obviously, they are not going to get equal time in
terms of exact same number of minutes until we are here until
well after the chickens have gone to bed. So I will cut it off right
here.
Senator KENNEDY. The Senator from Vermont.
Senator LEAHY. Thank you, Mr. Chairman. Mayor Young, good
to see you again.
I should note for all the people who are here to testify, I am de-
lighted you are, and I can say the same for the groups coming in
tomorrow and the next day and on, both for Judge Bork and
against Judge Bork. I would think that all of you would realize,
though, that those of us on this panel will probably make up our
mind predominantly if not exclusively based on what Judge Bork
said in answer to our questions and the questions of each of us on
both sides of this aisle.
I know in my case what he has said would answer for me really
all the questions I had and give me enough substance to make up
my mind of how to vote. I have heard, however, from an awful lot
of other Senators who are quite interested, who are not on this
committee, in what each of you are going to say. And because of
that, especially, I think it is good that all of youagain, both those
for and against Judge Borkhave taken the time to be here.
1085
I know how hard it is to fit any time in anyone's schedule for
anything these days, and you are each spending a great deal of
time.
I would like to ask you, Mr. Mayor, Judge Bork said often in one
way or another in his testimony that when minority rights are ex-
panded, the rights of the majority are diminished. And I believe I
am being fair to him when I say that he said, when pushed on that
question, that is a simple matter of arithmetic. So let me ask you a
question in this area.
When black southerners' rights were expanded, as indeed they
were as a result of the civil rights movement, whose rights were
diminished?
Mayor YOUNG. Actually, the rights of whites have expanded far
beyond the rights of blacks as a result of the civil rights movement.
I think you can put dollars and cents on that. Black income at the
time Martin Luther King wrote "Stride Toward Freedom" was $18
billion annually, in 1958-59. Last year black income was $205 bil-
lion. At the same time, during the same period, the income gap be-
tween blacks and whites has actually widened.
The opportunities that are now flourishing in the city of Atlanta
for whites would be impossible if they had not given basic human
rights and human dignity to black citizens. I think that is one of
the things that really disturbs me about Judge Bork's world view. I
think it is very un-American. I think a free market capitalist econ-
omy is an expanding economy. It is an economy that grows as you
bring people into the bottom, or anywhere in it.
It expands. It is an expansive concept. And it is not a closed
economy.
Senator LEAHY. SO you would not accept that there is some kind
of an arithmetical or computer-type program that if you expand
minority rights, then you have got to cut majority rights? What
you are saying in effect is that, at least with the civil rights area,
that when the rights of blacks were expanded, the rights of whites
were expanded also?
Mayor YOUNG. If you will forgive me, Senator, that view really
sounds rather Marxist, that you have got to have a class struggle
to get justice for the people on the bottom.
Senator LEAHY. I am not suggesting this is my view.
Mayor YOUNG. NO, I know. We proved that that is not the case, I
think, in America; that the more we have expanded opportunities
for the least of these God's children, the more those opportunities
have accrued to the entire society.
Senator LEAHY. My last question, I spent most of my timein
fact, about an hour and a half or soasking Judge Bork his posi-
tion on the first amendment, predominantly freedom of speech
questions. In fact, I might say that the questioning, again, on both
sides of the aisle was very extensive and went into a lot of subjects.
But that was one that, as the son of a printer and one that has
published a weekly newspaper and all, it is something that has
been driven home to me, the right of free speech.
So I was concerned about that.
We talked, again, about the civil rights movement and the Su-
preme Court decisions on segregation were, of course, extremely
1086
important to you. How important, also, were the Supreme Court
decisions on the right of free speech to the civil rights movement?
Mayor YOUNG. Well, actually, the
Senator LEAHY. And could you have had one, really, without
that?
Mayor YOUNG. NO, we could not. The civil rights movement was
essentially a free speech movement. It was a first amendment, 14th
amendment movement. And it was first the idea that we could
achieve justice without racial segregation. That idea, I think, has
been carried out. I mean, it is in the process of being realized in
our nation in ways that surprise us all, particular those of us who
grew up in a South that was quite different.
Senator LEAHY. Thank you very much, Mr. Mayor.
Senator METZENBAUM. Senator Grassley?
Senator GRASSLEY. Mr. Chairman, I have no questions, but I
want to welcome Mayor Young. I know Mayor Young from 2 of the
6 years he spent in the House of Representatives as a forceful
speaker for and representative for his point of view as well as his
constituency and know him to be a man of integrity and I respect
his view.
I am afraid on this appointment we probably will end up on op-
posite sides of the fence, but I appreciate very much his willingness
to lend his expertise and leadership to this cause.
Senator METZENBAUM. Thank you, Senator Grassley. Senator
Heflin?
Senator HEFLIN. I have no questions.
Senator METZENBAUM. Senator Humphrey?
Senator HUMPHREY. I have had my round. Thank you.
Senator METZENBAUM. Thank you very much, and thank you,
Mayor Young. We appreciate having you appear with us.
Our next witness is Burke Marshall. We are happy to have you
with us.
Do you solemnly swear to tell the truth, the whole truth and
nothing but the truth so help you God?
Mr. MARSHALL. I do.
The CHAIRMAN. I apologize. We are trying to line up the follow-
ing witnesses. Senator Thurmond has, since former Attorney Gen-
eral LeviI beg your pardonformer Attorney General William
French Smith has a plane to catch. If this witness is keptand Mr.
Marshall, I give you an optioneither if you are going to be rela-
tively short, we will go forward now and then get the Attorney
General. If not, I would beg your forbearance and bring the Attor-
ney General forward at this time and then come back to you.
Which do you think is likely to be the case?
Mr. MARSHALL. Well, Mr. Chairman, I am going to be fairly
short, but I am not alone in the room.
The CHAIRMAN. Why do we not just go forward then, Mr. Mar-
shall. Thank you very much for you indulgence, and General
Smith, we will be to you next.
Thank you for waiting, by the way, so long. You have been here
all morning and I appreciate that.
TESTIMONY OF BURKE MARSHALL
Mr. MARSHALL. Mr. Chairman, I do have a very short statement
and I will leave out parts of it in the interest of time. I appreciate
the opportunity the committee has given me to appear before it.
I am presently the Nicholas de B. Katzenbach Professor of Law
at the Yale Law School. I thought I should mention that, even
The CHAIRMAN. Nicholas de Katzenbach is sitting behind you on
your right.
Mr. MARSHALL. Right. And I have been teaching law at the Yale
Law School since 1970, so my period of teaching has overlapped
with that of Judge Bork twice and for a total of about 6 years.
I should say that what I have to say is based primarily, of neces-
sity, on what Judge Bork has written and said on his own prior to
these hearings. I realize that there is a body of judicial work also
before the committee and the Senate and I have taken that work
into account.
What I have not fully taken into account in this opening state-
ment, because of pressures of time, is what Judge Bork said before
this committee last week by way of modification or qualification or
shifts in his views. His testimony does not appear to me to affect
the thrust of what I have to say, although it would affect some de-
tails.
I would, of course, be glad to respond to questions from the com-
mittee on those matters.
I do not speak for the faculty of the Yale Law School, only for
myself. And I wanted to mention to you that I have been in private
practice. I worked for IBM for 5 years as their general counsel and
senior vice president, and I also had the pleasure of serving for 4
years as Assistant Attorney General in charge of the civil rights
division for President Kennedy and President Johnson.
The basic reason that I believe the Senate should not confirm
Judge Bork's appointment is this. He has shown himself, in his
writings, over and over again to be adamantly opposed to the long
and well established judicial role of protecting individual liberty
and disadvantaged an unpopular minority groups against govern-
ment coercion. At that same time, he has appeared to me to have
favored uncontrolled executive power, free from congressional con-
straints.
In this statement I would like to speak to just three areas of con-
cern. The first is the general shape of Judge Bork's constitutional
theories. It is easy to summarize his judicial philosophy from his
writings. He has been opposed in those writings to any but the
most narrow protection of personal freedoms and individual liberty
against government intrusion.
In this area he does not appear to believe in an important aspect
of the principle of government limited by law. That is to say, in the
proposition which I believe to be basic to constitutional govern-
(1087)
1088
ment, and especially to the Bill of Rights, that is the special role of
the judicial branch vigorously to protect the people against the
command of their government that controls or interferes with their
rights to behave as they choose, to speak and write as they choose,
to read what they choose, and to go make freely their own deci-
sions about their own personal affairs.
The committee has heard lots of evidence on this and will hear a
lot more. It is, of course, a fair and relevant question, one which
the members of the committee and each Senator will have to
answer personally, whether Judge Bork really believes what he has
said on these matters and whether he would hold to and apply
them if confirmed to the position of the Court.
I refer in the statement to some of the language that he has used
in his criticism of the Court's opinions. It is, as has just been men-
tioned, very vigorous and, indeed, almost violent language, which is
detailed in my statement. I also give, in the statement, some exam-
ples of logic which seem to me to be consistent, perhaps, with a ju-
dicial theoretician but not with a judge who is concerned with the
wise and prudent use of judicial power under the Constitution,
rather than theorizing about it.
The second area has to do with the great constitutional drive for
equality. Judge Bork's conception of the equal protection clause in
the past has been extraordinarily crabbed and narrow on any view
of the matter. He has rejected the one person/one vote position of
the Supreme Court, and he has also in past years stated that the
clause should be confined to distinctions made by the State on the
basis of race and analogous groups, thus denying its full protection
to other historically disadvantaged groups, including women.
I realize that he has shifted his position on this and I will be glad
to comment on that if any members of the committee wish me to
do so. But it is on Judge Bork's approach to problems of racial dis-
advantages that I want to focus. It appears to me that at every
turning point in the past quarter century on which there was still
room for disagreement, Judge Bork has favored positions that did
harm to minorities.
He has stated clearly that he accepts and defends the decision of
the Court in the school desegregation case, but he has seemed cool
to the measures necessary for its implementation. His position with
respect to the public accommodations title of the Civil Rights Act
of 1964 has been referred to over and over again.
Judge Bork has also criticized a numberas you have heard this
morningof critical Supreme Court cases in this area. But it is not
my purpose to go through these cases one by one. No doubt there is
something to his views in each case considered separately. No
doubt there is indeed some arguably valid ground on which any Su-
preme Court decision can be described as incompletely or wrongly
reasoned. But the real concern is with the tenor, the tone and the
substance of Judge Bork's discussion of these matters.
It seems to have shown no awareness, no understanding of the
enormity and the scope of the system of racial injustice that was
implemented by law in this country for so many decades, and that
insensitivity has to do, importantly, with what is wrong, both his-
torically in terms of constitutional purpose, with Judge Bork's un-
generous concept of the role of the federal judiciary, and especially
1089
of the Supreme Court under the equal protection clause and other
provisions of the Civil War Amendments.
It was the judiciary, followed by the executive branch, and then
followed again by the Congress, with its actions in turn legitimated
and fortified by the judiciary that enabled this nation finally to
confront and to resolve under law the terrible burdens of racial op-
pression. It seems to me that Judge Bork's reactions to racial issues
and his whole concept of the constitutional role of the federal judi-
ciary would have stifled rather than supported the accomplish-
ments of this period.
Mr. Chairman, I will omit the rest of my statement. I have a
statement with respect to the concept of judicial restraint which I
say in the statement seems to me to be a description of a result
looking for an explanation. And I will go into that also if members
of the committee choose, but I will not take more of the commit-
tee's time on the text of the statement I have submitted to the
committee.
1090
837
TESTIMONY OF BURKE MARSHALL
ON THE NOMINATION OF
JUDGE ROBERT H. BORK TO THE SUPREME COURT
Mr. Chairman, I appreciate very much the invitation of the

Committee to appear before it and briefly to explain why I
reluctantly, but with deep conviction, oppose the confirmation of
Judge Bork to an appointment as an Associate Justice of the
Supreme Court of the United States.
My present job is as the Nicholas deB. Katzenbach Professor

of Law at the Yale Law School. I have been teaching at the Law
School as a professor since 1970, mostly in the field of
constitutional law and related subjects. From 1970 to 1975 I was
in addition Deputy Dean of the school. I was thus a colleague of
Judge Bork at Yale from 1970 to 1973 and again from 1977 to 1981,
when he was appointed to his present position. My understanding
of Judge Bork's approach to the role of the judiciary is therefore
based in part on this personal acquaintance with his mind and
intellectual framework, as well as on his public writings and
speeches, which I have read with care.
I do not, of course, speak in any degree for the faculty of

the Yale Law School, or for any other group; only for myself.
Let me emphasize also by way of background that my assessment of
Judge Bork's qualifications for a position on the Supreme Court
is not based just on my work in constitutional law, or on
colleagueship at Yale. I also spent ten years in private
practice with the firm of Covington & Burling in Washington, and
five years in corporate practice as vice-president and general
counsel, and then senior vice-president, of the International
1
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838
Business Machines Corporation. Finally, I served four years in

the Department of Justice, as Assistant Attorney General in
charge of the Civil Rights Division, from 1961 to 1965, under
Presidents Kennedy and Johnson. My assessment of Judge Bork's
qualifications is formed and affected by the experience and
perspectives gained in all these capacities.
The basic reason I believe that the Senate should not
confirm Judge Bork's appointment is this: He has shown himself
over and over again to be adamantly opposed to the long and well-
established judicial role of protecting individual liberty, and
especially disadvantaged and unpopular minority groups, against
government coercion. At the same time he has appeared to favor
uncontrolled executive power, free from Congressional checks and
balances. He finds support for these positions in his view of the
Constitution, and of the judicial function under it. I think he is
wholly wrong about these matters, and that the Senate should not
endorse and legitimate his views by a vote for confirmation.
In this statement, I would like to speak to just three

specific but crucial areas of concern, which illustrate the reasons
for my opposition. The first has to do with the general shape of
Judge Bork's constitutional theories; the second with the impact
his approach would have, in the past and in the future, in the
search for racial justice; and the third with the supposed
concept of judicial restraint.
On the first of these points, it is easy, from what he has

said in his academic writings over the past twenty-five years, to
summarize Judge Bork's judicial philosophy. In short, he is
opposed in almost every context to any but the narrowest judicial
2
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839
protection of personal freedoms and individual liberty against
government intrusion. In this area he does not believe in the
principle of government limited by law that is to say in the
proposition, which I believe to be basic to constitutional government
and especially the Bill of Rights, that it is a special role of the
judicial branch vigorously to protect people against commands of
their government that control or interfere with their rights to
speak and write what they choose, to read what they want, to
assemble peaceably to persuade others to heed their grievances,
to worship, or refrain from worship, in their own way, and to
engage without government harassment in their own activities and
make freely their own decisions about their personal affairs
about family life, and the creation of children.
The Committee has been and will be furnished voluminous

evidence from Judge Bork's writings and speeches concerning each
of these areas, and I do not intend to go beyond their summary.
It is clear that his general position departs radically from the
thrust of the constitutional history of many decades. It is, of
course, a fair and relevant question one which the members of
the Committee and each Senator will have to answer personally
whether Judge Bork really believes what he has said on these
matters, and whether he would hold to and apply his beliefs if
confirmed to a position on the Court. But both the language he
has used and the way he thinks on such questions is highly
revealing. As to language, he has continuously referred to years
of Supreme Court decisions as "lawless", "unconstitutional",
"improper", "utterly specious", "pernicious", "unprincipled", and
"deficient" in "candor", "logic", and "legitimacy". As to his
3
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840
reasoning, let me mention two examples. In the first, he

compared the use of contraceptives by married couples to
smoke pollution by a public utility certainly one of the most
extraordinarily insensitive analogies in legal writing. Judge
Bork called the cases "identical". The second example is of his
use of logic. Judge Bork rejects, as is well known, the Court's
decision in Roe v. Wade, the abortion decision, which was joined,
incidentally, by Chief Justice Burger and Justice Potter Stewart.
Judge Bork calls the decision "unconstitutional", among other
things. Because Roe is based on Griswold v. Connecticut, the
contraceptive case just referred to, he rejects that case as
well, and then because Griswold in turn is based on decisions
protecting persons from compulsory sterilization, and
safeguarding the right to send children to private schools, and
to have them taught foreign languages there, "logic" compelled
the conclusion, for Judge Bork, that those decisions also should
not be respected. This, I believe, is because of an overriding
and totally academic concern for consistency in abstract theory,
as against the wise and prudent use of judicial power under the
Constitution. It seems to me to reflect a judicial temperament
wholly inappropriate to the work of the Supreme Court.
The second area of concern I would like to touch upon is

that of the great constitutional drive for equality that stems
from the Fourteenth Amendment. Judge Bork's general conception
of the equal protection clause has been, of course, extraordinarily
crabbed and narrow on any view of the matter. He completely
rejects the constitutional requirement of one-person one-vote,
accepted and acted on by the states over and over again during
4
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841
the past twenty years. He has also stated that the clause should
be confined to distinctions made by the state on the basis of
race and possibly ethnicity, thus denying its protection to other
historically disadvantaged groups, including women. By these two
strokes, he sweeps aside scores of Supreme Court decisions of the
past three decades.
But it is on Judge Bork's approach to problems of racial

disadvantages that I want to focus. It appears to me that at
every turning point in the last quarter century on which there
was still room for disagree-ment, Judge Bork favored the
positions that did harm to minorities. He has stated clearly
that he accepts and defends the decision of the Court in the
School Desegregation cases; yet he has always seemed cool to the
measures necessary for its implementation, which are the heart of
the matter. In a celebrated piece in 1963, he opposed the public
accommodations title to the Civil Rights Act of 1964 on the
extraordinary theory that the liberty at stake was not that of
the blacks turned away by the establishments covered by the
statute, but that of the establishments themselves to
discriminate against blacks. Judge Bork has since changed his
mind on the issue, but it was, of course, one's position at the
time that counted, not that taken some ten years later. Further
his change of mind was described at the time he announced it
in confirmation hearings before the Senate as based on the
fact that the law worked, and not on some principle of justice.
Judge Bork has also criticized a number of more recent

Supreme Court decisions concerned with racial justice. Among
them are Harper v. Virginia Board of Education, which declared
5
1095
842
poll taxes to be unconstitutional restrictions on the right to

vote in state elections; the Bakke case, permitting a degree of
special consideration to benefit minority groups; and Katzenbach v.
Morgan and Oregon v. Mitchell, confirming applications of
congressional power to ensure the right to vote by minority
citizens. It is frequently noted that he has even characterized
as wrongly decided, as having "no warrant anywhere," the forty-
year-old, unanimous decision in Shelley v. Kraemer, holding
unenforceable racially restrictive covenants intended to prevent
a willing white seller from conveying property to a willing black
buyer.
But it is not my purpose to criticize Judge Bork for his

views about any single one of these decisions. No doubt there is
something to his views in each case, considered separately. No
doubt there is indeed some arguably valid ground on which any
Supreme Court decision can be described as incompletely or
wrongly reasoned. The real concern is with the tenor, the tone
and the substance of Judge Bork's discussion of these matters.
It seems to show no awareness, no understanding of the enormity
and the scope of the system of racial injustice that was
implemented by law in this country. And that insensivity has to
do importantly with what is wrong, both historically and in terms
of constitutional purpose, with Judge Bork's ungenerous concept of
the role of the federal judiciary, and especially the Supreme
Court, under the equal protection clause and the other provisions
of the Civil War amendments. It was the judiciary, followed by
:he executive, and then followed again by the Congress, with its
actions in turn legitimated and fortified by the judiciary that
6
1096
843
enabled this nation finally to confront and to resolve under law
the terrible burdens of racial oppression. It seems to me that
Judge Bork's reactions to racial issues, and his whole concept of
the constitutional role of the federal judiciary, would have
stifled rather than supported the accomplishments of the period.
It should be remembered that those accomplishments were not just
substantive, but must also be measured in terms of the success of
the civil rights movement as an instrument of protest. It fell
to the federal judiciary to be a shelter not only for the rights
of simple justice that were at stake, but also for the freedom
effectively and massively to protest their denial. There thus
occurred a period of what must be described as vigorous judicial
implementation of long suppressed constitutional rights
judicial activism, if you will, in that sense that is one of
the glories of our national history. That role appears to me to
be denied the judicial branch under Judge Bork's scheme of
things, especially in view of his long-standing and explicit
rejection of the Holmes-Brandeis approach to the scope of
protection of advocacy of active resistance to an entrenched
political system a test which was of course made authoritative
doctrine by the Court at least thirty-five years ago.
Finally, let me say a word about what is called "judicial

restraint." This is a term that has become for me the
description of a result looking for an explanation. I do not
credit Judge Bork with this obfuscation of language; he is quite
precise in his own use of words. In the context of the issue now
before the Senate, "judicial restraint" appears to mean deference
to majoritarian rule, or the decisions of the legislature. This
7
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844
meaning does not seem to me to be capable of being applied

consistently to Judge Bork's judicial philosophy. Certainly he
advocates such deference when the issue turns on limitations on
government interference with individual rights and personal
liberties, even though the principal body of law involved, which
is the Bill of Rights, is the most explicitly anti-majoritarian
part of the Constitution. Yet he does not seem to believe in
such deference for affirmative" action programs that take the form
of majoritarian efforts to confer special benefits on
disadvantaged groups. Nor does he appear to apply it to
majoritarian action in the form of Congressional checks on
Presidential or executive branch decisions and behaviour, as in
the case of the creation of the office of independent counsel.
Sometimes, furthermore, Judge Bork seems to rely heavily on the
text of the Constitution, yet he departs from this principle as
well when he constructs his own theory of limitations on the
Speech Clause, or when he discusses issues of structure. My
point is not that Judge Bork is wrong on all these points, but
that his judicial philosophy as a whole simply cannot be
explained by some such simplified characterizations as "judicial
restraint."
I should repeat that my views concerning Judge Bork's ideas

and judicial philosophy rest primarily, of necessity, on what he
has written and said on his own prior to these hearings. I
realize that there is a body of judicial work also before the
Committee and the Senate, and have taken that work into account,
but in the main it is not concerned with the matters that I have
discussed, and is in any event, as Judge Bork has said,
8
1098
845
constrained by the hierarchal structure of the judiciary, so that

the court on which he sits is bound to follow what the Supreme
Court has decided.
I thank the Committee very much for its time and attention.
1099
The CHAIRMAN. Thank you very much, Professor. Let me make
sure I understand.
At some point you have taught at the law school, at the same
time that Judge Bork was teaching at the Yale Law School?
Mr. MARSHALL. From 1970 to 1973, and then from 1977 to 1981.
The CHAIRMAN. This must be difficult, for you to be here. Let me
ask you another question.
You indicated that you would notunless the committee wished
you totake the time to go into questions about the consistency
maybe the wrong wordof Judge Bork's testimony, and how that
comported with what he has written, and what he has spoken, to
your knowledge, about his views on many of the subjects he ad-
dressed during his testimony.
Did you have an opportunity to observe any of the testimony
that Judge Bork gave in the last week?
Mr. MARSHALL. Mr. Chairman, I looked at some, I have read
some, and I have read summaries of the rest of it, and I think that
I understand the general tenor, maybe not the details on every
point, but the general tenors of his discussions with members of
the committee with respect to the principal areas of concern to the
committee, and I will be glad to speak to those.
The CHAIRMAN. Well, the principal areas of concern, I think it is
fair to say, that we focused on, were the 14th amendment, the right
of privacy, the definition of liberty, the ninth amendment, the first
amendment, and in a general sense, the judge's view of precedent.
Now it seemed to me, having read, I believeI want to be clear
about this. I believe that in everything that the judge had written,
there was not a case that discussed Judge Bork's evolving notion of
precedent and its role, and how much a Supreme Court Justice was
bound by it, or he felt boundseemed to have evolved from his
writings, to what he said at the hearing. My impression, not yours.
Can you give me, to the extent you are able, your impression of
Judge Bork s explanation of the role of precedent before the com-
mittee, as opposed toif at all opposed tohis writings and/or ut-
terances, to the best of your knowledge, on precedent prior to his
testifying.
Mr. MARSHALL. Well, Mr. Chairman, prior to his testimony, he
said on several occasions that it is a function of a Justice of the
Supreme Court to overturn decisions, to vote to overturn decisions
that the Justice thought were not based on principle, on constitu-
tional principle.
Now I may say, Mr. Chairman, that many Justices over the
course of history have said that they have thought that they should
rethink for themselves constitutional questions, because the Con-
gress and the legislative branch is unable to change their decisions
on those matters, and if they have made a mistake, the Court has
to change it itself. So that is not totally unorthodox, since what he
had said before the committeeas I understood itwas that there
are areas in which he feels that he would be bound by precedent
because the precedent has established so many institutions of gov-
ernment, so many built-in expectations of our society, that he
would not feel free to overturn them.
The one area that he has been specific about along those lines,
that I know of, is the commerce clause decisions. I think that he
1100
may, on principle, disagree with the scope of the commerce clause,
as it has been defined by the Supreme Court in the last 50 years,
during this century.
But I think that he has been clear that he would not tamper
with those decisions, although he might limit them in some cases
where there are overriding or new principles of Federalism that
have not been dealt with before.
The CHAIRMAN. HOW about the judge's view stated hereI think
he acknowledged, and I look to my colleagues, Senators Hatch and
Thurmond to correct me if I am wrong on thisI think that he in-
dicated for the first time, having publicly articulated itthat is,
that he accepted the standard of reasonableness for making deter-
minations on due-process questions under the 14th amendment.
Mr. MARSHALL. On the equal protection clause.
The CHAIRMAN. Excuse me. On the equal protection clause, the
14th amendment. Is that a different standard than you anticipated
he would use, or did you know that to be his standard? Did he talk
about that?
Mr. MARSHALL. NO, Mr. Chairman. There is nothing that I know
of, in Judge Bork's scholarly work, or opinions, or speeches, or any-
where, prior to these hearings, that adopted that. His view of the
equal protection clause, until recently, has been as I stated it in my
text.
It has been that the core value protected by the equal protection
clause is a value against racial discrimination, and he would
extend that to analogues of racial discrimination, period.
In these hearings, as I understand them, he has said that the
equal protection clause is not limited in its protection to those
groups, but that it protects all groups. But in doing that he shifted,
and adopted a new view of the standard of scrutiny that the Su-
preme Court would give.
Of course, Mr. Chairman, it has been true from the beginning,
that the equal protection clause protects all groups. The whole
issue has been the degree of scrutiny, the degree of judicial judg-
ment that is brought to bear upon legislative determinations with
respect to what groups to benefit and what groups to disadvantage
in their legislation, and it is in that context that the so-called
three-tier of scrutiny, triple tier of scrutiny came up under the
equal protection clause.
Now to bring in other groups, and then apply a standard of rea-
sonableness to all of them does two things, it seems to me.
One is that it unquestionably lessens the judicial protection of
the groups that have heretofore been specially protected. That is,
racial groups, women, illegitimate children, aliens, and possibly
others. And the other is that it sort of leads up for judicial grabs,
the determination of reasonableness across the whole spectrum of
the equal protection clause litigation, in a way that seems to me, I
must say, to be inconsistent with Judge Bork s general philosophy
of judicial restraint and of not leaving that kind of discretion in
the judiciary to decide what they think is reasonable and what
they think is not reasonable, without any specific guiding stand-
ards inside the Constitution.
The CHAIRMAN. Thank you. I yield to the Senator from South
Carolina.
1101
Mr. Marshall, we are glad to have you here. On account of the
lateness of the situation I am going to forego any questions.
The CHAIRMAN. The Senator from Ohio.
Senator METZENBAUM. Professor Marshall, you were a colleague
of Judge Bork for many years at Yale. You are personally familiar
with his philosophy. In all the years you have known him, did he
ever say, prior to these hearings, that the equal protection clause
applies to women?
Mr. MARSHALL. NO, Senator. I think everything that I have seen
that he has written and said has been to the contrary. That it has
been limited to the protection, or at least the special protection of
racial groups and their analogues, which I take are ethnic groups.
Senator METZENBAUM. HOW much confidence would you have
that Judge Bork, if confirmed, would apply the equal protection
clause in a vigorous and compassionate way, prohibit discrimina-
tion against women, blacks, and other disadvantaged members of
our society?
Mr. MARSHALL. Senator, I think that is not an answerable ques-
tion. At least it is not answerable to me. He has specifically adopt-
ed a new standard.
He has said in these hearings, that in his view, that any distinc-
tions based on race are unreasonable, and that they therefore
would flunk his test.
The trouble is that that is his view, and the test that he has an-
nounced is one of reasonableness. Now it may be that to other
judges in the future, and even to Judge Bork in the future under
evolving circumstances, some distinctions will be made by legisla-
tures that he will view as reasonable.
The same with respect to women, Senator Metzenbaum. He has
never favored giving special protection to women. He also said in
these hearings that he thought that many distinctions between
men and women were unreasonable.
But that is, you know, it seems to me, a substitution of the
judge's view of reasonableness for somebody else's.
Senator METZENBAUM. He testified that he would apply the equal
protection clause to women about the same way the Supreme Court
does now.
However, he stated that the decision to strike down different
minimum drinking ages for men and women trivializedand that
is his wordthe Constitution.
As a professor, as the student of the law, can you reconcile those
two statements?
Mr. MARSHALL. Senator, I think they illustrate what I just said.
He has disparaged the opinion of the Court in Craig v. Boren. I
think that is the opinion that you were referring to. So he thought
that was wrong.
Now he takes a reasonableness standard. It seems to me that he
probably would still think it was wrong, and that in that case at
least, the distinction made between men and women was reasona-
ble. So that is what I mean byI do not think that this commit-
teeand of course this is an evolving thing, it may take years to
sort out if that standard is applied by the Supreme Court instead of
86-974 0 - 8 9 - 3 7
1102
the standard of scrutiny that is now applied. But I think it is
highly unpredictable at least, Senator Metzenbaum.
Senator METZENBAUM. Thank you, Professor Marshall. Thank
you for being with us. Our next witness isSenator Hatch.
Senator HATCH. Professor Marshall, I just want to ask one ques-
tion. It was reputed in a panel discussion last week at Yale, you
said of Justice Frankfurter that, quote, "On many scores, I think
he was a disaster as a Justice of the Supreme Court."
Is that correct?
Mr. MARSHALL. Something like that, Senator.
Senator HATCH. The point that I think needs to be made here is
that given the similarity of Judge Bork, in many respects, to Jus-
tice Frankfurteryou knowin one sense this may be the central
issue of this whole battle, and the debate.
Could Justice Frankfurter, who was one of the giants of Ameri-
can jurisprudence, and of American law, in any eracould he be
confirmed today under the standards that are being applied to
Judge Bork?
And under the ideological scrutiny that some, including yourself,
are providing here today? And I have to say I fear that he would
not.
Mr. MARSHALL. Senator, may I explain that?
Senator HATCH. Because as you know, he criticized the Court in
the same areas that Judge Bork has been critical of the Court.
He was against one man, one vote. The Baker v. Carr decision.
The Reynolds v. Sims decision. The poll tax cases. The Harper case.
He was probably on the wrong side on that, according to those
whose ideology differ with him. The imminent lawlessness speech
with regard to the Brandenburg case, and you can go on and on.
Mr. MARSHALL. Senator, my comment about Justice Frankfurter
was made in the course of a discussion on this question: What
value is to be put on academic credentials and an academic career
in judging qualifications for sitting on the Supreme Court of the
United States?
My point was, that what somebody did, and the function of some-
body, as an academic was inconsistent, I think, with training to be
a Justice, a good Justice of the Supreme Court of the United
States.
Justice Frankfurter was difficult to get along with, with his col-
leagues. He lectured them. His opinions are full of lectures that are
sort of repetitive.
He had a hard time deciding some matters. That comment did
not, in any respect, go to Justice Frankfurter's substantive view
with respect to the Constitution.
On his substantive view, Justice Frankfurter over and over again
adopted a due-process standard for the implementation of substan-
tive rights.
In fact the whole fight between Justice Frankfurter and Justice
Black was on that issue, so that Justice Frankfurter's career with
respect to that issue, and the privacy issue in these hearingsand
I think would be with respect to this element of reasonableness as
being the standard for equal protection clause, is inconsistent with
Judge Bork's view.
1103
Judge Bork is looking for certainty, bright lines, a constitutional
theory that can be picked up and applied to any case that comes
along.
Justice Frankfurter was constantly striving for flexibility, for de-
cisions that were based on, as he said over and over again, that
were rooted in the traditions of the country, and in the precedents
of the Supreme Court.
So I think that on the merits, on the substantive merits, on what
you have called ideology, Justice Frankfurter and Judge Bork are
quite far apart.
Senator HATCH. Well> you and I differ on that, but nevertheless,
it seems to me that it is an important point that has to be made. If
Justice Frankfurter came up for his nomination today, he would
have a heck of a time getting through certain members of this com-
mittee, and it would be on the basis of ideology.
And I think there are many similarities between Justice Frank-
furter, and, now, Judge Bork, but be that as it may, we appreciate
having you here.
The CHAIRMAN. Senator Heflin.
Senator HEFLIN. We are running 2 or 3 hours behind time, so I
withhold asking any questions at this time.
The CHAIRMAN. Senator Grassley.
Senator GRASSLEY. Professor Marshall, you say in your statement
you served three- and four-year tenures as a colleague with Profes-
sor Bork.
During that 7 yearsis that right? About 7 years?
Mr. MARSHALL. About 7 years, Senator.
Senator GRASSLEY. Have you, during that period of time, been
able to become acquainted with him enough, sit down and talk
with him about his views on the Constitution, particularly how his
views related to the protection of minority rights?
So you kind of feel like you really got to know him as an individ-
ual, other than just how he wrote, or what he wrote?
Mr. MARSHALL. Senator, there is nothing that I can tell you that
is basedI know Judge Bork reasonably well as a colleague. I do
not know him personally, as a personal friend. I have been in
many meetings with him, and conversations with him. I do not re-
member ever discussing with him, specifically, matters that in-
volved racial minorities. So I cannot add to his writings from my
personal experience.
Senator GRASSLEY. Well, I ask that because those of us on this
committee, we just spent more than 30 hours aggressively inter-
viewing Robert Bork.
Is there anything in that more than 30 hoursand you said you
have had a chance to see or review part of itto suggest that
Judge Bork lacks judicial temperament, and the integrity that a
person serving on the Supreme Court ought to have?
Mr. MARSHALL. Senator, it depends on what you mean by "tem-
perament." I am sure that Judge Bork is an intelligent and skilled
lawyer, and he has been an intelligent and skilled judge so far as I
know.
He would not throw chalk at people. He would behave himself on
the bench. He has that kind of judicial temperament. What I am
concerned about is his academic, or highly intellectual approach to
1104
an institution, and the work of an institution which is effectively a
very important policy-making institution, one of the three branches
of our government, and I do not think that it should be looked at,
or its work should be looked at, like an intellectual enterprise, an
intellectual game. Now that may not be a matter of temperament,
as you put it.
Senator GRASSLEY. Well, is there anything, from your perspec-
tive, as you viewed Judge Bork, as you got acquainted with him,
whether you were a personal friend or notyou said you were
notbut you obviously had more contact with him than most mem-
bers of this committee did.
Is there anything that you know about him we ought to be aware
ofand again, keeping in mind these 30 hours we spent with him,
and there is going to be a written record for us to study.
Is there anything about Judge Bork that maybe we ought to take
into consideration? In any way, would he mislead us, under oath,
about whether or not he would uphold the Constitution?
Mr. MARSHALL. I do not believe he would mislead you at all
under oath about whether he would uphold the Constitution as he
sees it.
Senator GRASSLEY. YOU would declare then from the standpoint
of his intellect and as he approached the subject that he is intellec-
tually honest?
Mr. MARSHALL. Yes. That does not mean he is predictable, but I
think that he is intellectually coherent as he develops his theories
and then changes them.
And he is certainly honest in the personal sense, Senator, if that
is what you are asking.
The CHAIRMAN. The Senator from Pennsylvania.
Mr. Marshall, I had upset myself for a few moments, but I have
heard about all of your testimony on radio and television. It is easy
to attend these hearings; you do not have to be here. They follow
you wherever you go.
I wanted to ask you a few questions. You knew and know Judge
Bork. I believe I saw you quoted in the press saying that as a
matter of integrity you trusted him. I believe you testified pretty
much to that effect today. Is that an accurate statement?
Mr. MARSHALL. I have no question about that, Senator.
Senator SPECTER. Professor Marshall, when he appeared here
and testified, he did shift position, as I see it, but he ended up ac-
cepting more than the Supreme Court's interpretation of the Com-
merce clause as an acceptable settled law beyond what original
intent was.
The CHAIRMAN. Excuse me. I hate to do this, Senator. I would
like to ask if we can come back to the question. I am told Attorney
General Smith has a 5:15 plane. Unless he comes up now, there is
no chance of him making that plane.
Would you mind us interrupting at this point, and then we will
come back to that question?
General Smith, would you come up and be sworn? Please come
up, General Smith. If it is within minutes, yes. If notGeneral
Smith, you are going to miss your plane.
1105
Mr. SMITH. I am not going to make it anyway.
The CHAIRMAN. Well, if that is the case, then we will just com-
plete the testimony. All right. Come back up, Mr. Marshall. Sorry.
Senator SPECTER. Professor Marshall, we were in the midst of ex-
amining doctrines which Judge Bork has accepted even though
beyond the scope of original intent, and you had commented in
your testimony that he had said the Commerce clause was accepted
even though it was not what the framers intended.
In the course of his testimony here he went beyond that. For ex-
ample, on the issue of clear and present danger he said that he ac-
cepted the Brandenburg decision, although he did not agree with it
philosophically.
Now would you accept his statement that he would interpret
Brandenburg v. Ohio on the clear and present danger test, the free-
dom of speech, the settled law and faithfully carry out that consti-
tutional doctrine?
Mr. MARSHALL. Senator, I have no way of quarreling with that. If
he said he is going to do that, I am sure he is going to do that. As
was developed during Judge Bork's testimony, there are certain
ambiguities about that statement, however. He has not said that he
accepts the intellectual and historic and traditional underpinning
of Brandenburg.
Senator SPECTER. On the contrary, he says he disagrees with it.
Mr. MARSHALL. He disagrees with it. Yet the sense dissents and
the concurrence in Whitney, of Holmes and Brandeis are to my
mind and to the mind of many scholars a part of the great tradi-
tion of the first amendment in this country.
So I think to say that he accepts Brandenburg as precedent and
at the same time denies the historic purpose of Brandenburg is an
ambiguous position. That gets us, Senator, into the question of
what Brandenburg is, and Brandenburg is a holding in Ohio, I
guess it was, that a statute was unconstitutional on its face. The
Ohio court construed it not to have any clear and present danger
test in it, relying on Gitlow.
So that in Brandenburg v. Ohio, all the court said really was that
a statute framed in those terms is unconstitutional.
Now, as I believe you developed, Senator, in your colloquy with
Judge Bork there are fact nuances, there are all kinds of ways that
if you do not accept sort of the grand theory of the first amend-
ment developed by Holmes and Brandeis, that the acceptance of
Brandenburg as a precedent is a limited statement with respect to
the scope of the first amendment in my judgment.
Senator SPECTER. Professor Marshall, there are two dominant
legal doctrines, which are unresolved by Judge Bork's testimony as
I see it. One is the free speech, clear and present danger issue, and
the second is the equal protection clause. There are many more
issuesthe privacy issue or due process of the 14th amendment, an
Executive, legislative conflict. There are many, many others, but
these are the two that I want to ask you about
Now you say you know him. He says that he accepts the Bran-
denburg doctrine. I said to him "How could we be sure if you dis-
agree with the philosophy, that you can apply it?" And he said,
"Because I will do my very best. I am making commitments in this
proceeding. I would look foolish in history."
1106
You know the man, and that is why I ask you the question to
give us whatever guidance and insights you can as to what he
would do. You say that you think he would follow Brandenburg,
and then you qualify it saying subject to disagreement with philo-
sophical underpinnings.
But can you do any better than that, or is that as much as you
can say?
Mr. MARSHALL. Senator, I do not think that there is anything
from my personal acquaintance with Judge Bork that will cast any
light on this. But I do think that his statementhe is a careful
lawyer. He is careful in what he says, and his statement was that
he accepted Brandenburg as a precedent and that he would not
overturn it.
Senator SPECTER. And that he would apply it.
Mr. MARSHALL. And he would apply it. And what is a precedent
for is the question? It is the precedent for the fact that a statute,
written as that Ohio statute was, which was based on the syndical-
ism act, that was declared constitutional in Gitlow, is no longer
constitutional.
I think, Senator Specter, that that does not tell me much with
respect to in what was Judge Bork has agreed with you, or how he
will approach the first amendment problems of that sort.
May I add, Senator Specter, that I am also in this area deeply
troubled by Judge Bork's rejection of Cohen v. California. Cohen v.
California involved explicitly political speech, and Judge Bork
thinks it is wrongly decided because he thinks that the state can
control the language, the way in which an explicitly political state-
ment can be stated.
I think that that is also awfully open-ended and a matter of
great concern to the first amendment people.
I have some reservationsif I may, I have one other point, Sena-
tor Specter in the first amendment area, because I think you are
going to move to something else. I am concerned about him with
respect to content neutrality.
The issue in Finzer v. Barry that is not much of a case really in
a waybut the principal issue, the issue of principle is one of con-
tent neutrality. And he has written other things with respect to
content neutrality, and the belief that the state can control speech
on the basis of content because it does not like the possible accept-
ance of the message in the content that troubled me also.
Senator SPECTER. Professor Marshall, because of the shortage of
time, let me move now to the equal protection issue. The upshot of
where you come out on clear and present danger in the first
amendment speech, you are inclined to accept him as an honorable
man on what he says, but you have some doubts as to his ability to
apply a doctrine where he does not agree with its philosophical
basis. That is the essence of it?
Mr. MARSHALL. I think it just limits the meaningfulness of the
statement that he will apply that as a precedent, yes, Senator.
Senator SPECTER. With respect to the issue of equal protection of
the law, Senator Metzenbaum asked you if you had known about
any time he had expanded equal protection of the law beyond what
he had written that race was the core value, as you testified. In one
of his speeches, he expanded it to ethnic matters.
1107
Have you ever had any conversations with Judge Bork about this
subject which would go beyond his written materials?
Mr. MARSHALL. NO, I have not, Senator,
Senator SPECTER. SO you know the same amount that we do from
access to his written materials?
Mr. MARSHALL. That is right. His position on equal protection.
His expansion of itI am not sure that is a correct characteriza-
tion of itbut his reformulation of it was a complete surprise to
me.
Senator SPECTER. Well, he said in this room last week that he
would be committed to the settled doctrine of equal protection, as
the court has now applied it, beyond race and ethnic matters to in-
clude women and illegitimates and indigents and aliens, and so
forth, as the court has interpreted it.
Would you have any reason to doubt his sincerity on that sweep
of interpretation?
Mr. MARSHALL. NO, Senator, but that is not the question. The
question is the degree of scrutiny
Senator SPECTER. Well, that is the next question; that is the next
question which I am about to discuss with you, as I did with Secre-
tary Coleman this morning.
But deal with my question for a moment. You would have no
reason to doubt his sincerity in applying equal protection as he
committed to under oath on the stand, so to speak, here?
Mr. MARSHALL. Yes. If I may say so, Senator, this may be apart
from what you are asking me about, but there has never been any
question to Judge Bork or anybody that it applies to gender classi-
fications or illegitimacy classifications. The question has been:
What degree of judicial scrutiny does the court give to those classi-
fications?
And it has always been true that any classification is given some
judicial scrutiny. The judicial scrutiny that is given historically for
many decades has been is it a rational classification.
Senator SPECTER. Professor Marshall, as far as Judge Bork is con-
cerned, that is not so based on his writings. He said in response to
my question that the equal protection clause was the only basis to
reach gender and indigents and illegitimates. And based on his
writing, he said it did not apply. He would allow the majority rule
to determine that without any judicial scrutiny until he expanded
that range here.
Mr. MARSHALL. Well, what I am saying, Senator, is that I guess
that I would have to accept that was his position but it is histori-
cally a totally untenable position.
Senator SPECTER. Well, okay. So you accept the position that he
has taken here in the hearings.
Now the next question, which is the one I discussed at some
length with former Transportation Secretaryand I will try to
make this reasonably brief because we have so many more wit-
nesses.
I will ask you the same question that I asked Secretary Coleman
that you heard, and that is: Once Judge Bork has accepted Justice
Stevens' articulation of a doctrine for equal protection of the law as
Justice Stevens adopted it in City of Cleborne y. Cleborne Living
Center, where Justice Stevens starts out disagreeing with the three-
1108
tiered test and comes to what he classifies as the rational test, con-
sidering the tradition of disfavor, and of course this is the context
where Justice Stevens does not have any ax to grind.
My question is: Are you sure that the prevailing Supreme Court
test on equal protection of strict scrutiny is any different than the
test articulated by Justice Stevens in the Cleborne case?
Mr. MARSHALL. I think it is, yes, Senator.
Senator SPECTER. Why?
Mr. MARSHALL. Because I think that Judge Stevens' testas you
say, Judge Stevens does not have any agenda. He is trying to clean
up the doctrine, and he is trying to clean it up by having one test
for all equal protection cases.
But I think to say that there is one test for all classifications and
then further denote that test, characterize it as being one of rea-
sonableness, both necessarily lowers the degree of scrutiny given to
hitherto specially protected classes, and puts them on a par as far
as the court is concerned with other classes that have not been spe-
cially protected. And that the consequence of that, Senator, over
the years I could not predict.
But I notice that nobody but Justice Stevens has taken that posi-
tion on the Supreme Court, I believe.
Senator SPECTER. Well, this is an evolving doctrine. As I pointed
out this morning, you were here and heard me comment that in
Craig v. Boren, trying to find a definition for equal protection of
the law, there were nine Justices and there were seven opinions. So
this is a doctrine which is very much in a state of flux.
And I am not sure that Justice Stevens' test is not as rigorous as
strict scrutiny. There just has not been enough delineation to
really follow it through, but I am interested very much in the opin-
ion which you have given here.
The final question I have, Professor Marshall, turns on the state-
ment which you have made objecting or raising a question as to
what Judge Bork has said about Supreme Court decisions as law-
less, unconstitutional, et cetera. You have not picked out the tough-
est language. The tougher language was that when there is a pro-
ceeding without any basis, that it is a sign of guilt of civil disobedi-
ence, or the language that if there is no basis for an argument,
why not make the argument to the Joint Chiefs of Staff, which has
a better way of carrying out its edicts.
But the question I have for you, that in the realm of professorial
writing where you are trying to attract some attention for your
doctrines and try to have some impact on the development of the
law, why is it not fair to use this kind of strong language? Why is
it not fair to use it really pretty much by analogy to Holmes of
strong language to the break of imminent violence, to try to carry
forth an idea and to have it accepted?
Mr. MARSHALL. Senator, I used that language not to object to the
use of language, but to illustrate the strength of the ideas. The
question before the Senate is his ideas.
Now his ideas have been shifted perhaps, qualified, modified, ex-
plained, elaborated, whatever word you want to use, in these hear-
ings. But prior to this, I am saying, Senator, that he was not just
throwing out ideas. He was preaching, and he was preaching very,
very strongly.
1109
Senator SPECTER. HOW does that differ with throwing out ideas?
Mr. MARSHALL. I think, Senator, it goes to the question of wheth-
er or not he is sort of playing around or whether he is saying some-
thing that he is deeply committed to. And I think that this lan-
guage, among other things, shows that he was deeply committed to
the ideas behind them, and that the ideas behind them are what he
has described over and over again, that in connection with a con-
test, a contest between personal liberty, individual freedom and
majoritarian rule, even on questions of personal morality, that it is
the majoritarian rule as the rule of government coercion that pre-
vails unless he can find a very specific and very compelling, an in-
escapable constitutional prohibition against that government
action.
Thank you, Professor Marshall.
The CHAIRMAN. Does my colleague from New Hampshire have
any questions?
Senator HUMPHREY. I just wanted to follow up very quickly on
the colloquy between the professor and Senator Specter, and point
out that once again the most frequently cited source of Judge
Bork's academic views, or his views as an academic, is the 1971 In-
diana Law Journal, a 26-year-old publication, in which he says,
very clearly at the outset, and I think at the conclusion, "These are
tentative thoughts." And so that is, I think, more of the nature of
inquiry than it is the nature of preaching as you seem to suggest,
Professor.
When someone clearly says "These are tentative thoughts," that
is hardly a case of someone pouring "fire and brimstone" from the
pulpit.
Mr. MARSHALL. But Senator, he has said, as I am sure you
knowit is in the recordover and over again, that those are the
ideashe sayspretty well the ideas that I developed in 1971, are
the ideas I believe in.
Now I think that he has modified them, and I think that there
was one sort of totally untenable idea in there, and that is that the
first amendment was limited in its protection to explicitly political
speech and did not cover anything else.
And I think that over the years, in answer to academic combat,
that he has abandoned that idea because it was never a tenable
idea. But with respect to the approach, with respect to the judicial
philosophy, with respect to the notion of what the judicial function
is with respect to the privacy casesall of that in his 1971 article
he has generally held to.
Senator HUMPHREY. Mr. Chairman, out of respect for our wit-
nesses who are waiting I will not ask for further time, but let me
make this observation, that a very unfortunate decision has devel-
oped here, not through any fault of the chairman, or any member,
or anyone.
But we have spent 9 hours on one panel. We have got two more
panels waiting. We have kept Attorneys General sitting on their
keesters for hours on end here, not that they are anybody special
at this point, they are just ordinary citizens, but we must be very
careful that this citizen does not repeat, out of fairness to other
1110
witnesses, and of fairness to both sides. We just must not let this
happen again.
I do not know what the solution is, but it is terrible, really is un-
fortunate.
The CHAIRMAN. I guess to stop is the solution. I want to thank
you very much.
Now let me ask, while General Levi and General Smith are
coming forward, if those two people would come forward, let me ex-
plain what my intentions are for the remainder of the day.
We did start at 10. We have been going a total of 6 hours with a
1-hour break.
My intention is to continue to go until we are finished with
today's witnesses, including the bar association.
So let us go to General Smith and General Levi, and then we will
go with Mr. Katzenbach who has also been waiting, and then we
will go with probably one of the best-loved Senators and Attorneys
General. Attorney General William Saxbe who we have missed
seeing around here, and I believe also Secretary Rogers, Attorney
General Rogers.
And then we will go with the ABA.
I understand, General Levi, that you have the next plane to
catch, so why don't we begin with you, have questions of you, and
let you go, if we can, and I hope everyone remembers their own
words about wanting to keep this short.
I would note that the chairman has not asked more than 5 to 7
minutes worth of questions of any witness.
If we all did that, maybe we would make it.
General Levi, welcome back.
Mr. LEVI. Thank you. Aren't you going to make me swear any-
thing?
The CHAIRMAN. Oh, I should. I have so much confidence in you. I
will swear you both.
Do you swear the testimony you are about to give is the whole
truth and nothing but the truth, so help you God?
Mr. LEVI. I do.
Mr. FRENCH SMITH. I do.
The CHAIRMAN. Thanks for reminding me, General. Fire away.
TESTIMONY OF EDWARD LEVI
Mr. LEVI. Mr. Chairman, members of the committee, I have a
statement, and the statement is built around my peculiar idea, I
suppose, of my relationship with Judge Bork, since I have seen him
at different periods over a long time.
Five years ago, I had the honor of speaking at the formal investi-
ture of Judge Bork as a judge of the U.S. Court of Appeals.
I then stated that my credential for this privilege was that he
was my friend, and that my association with him began years ago
when he was a student at the University of Chicago.
He came to the university after service in the Marine Corps. I
believe I was the professor of the first class which he took in the
law school. That was in 1948.
It was a course in jurisprudence called Elements of the Law, and
this seems to have been a seminar on that.
Robert Bork was called back to military service in 1950 and re-
turned as a law student in the summer of 1952. Then I participated
with Aaron Director, an influential and pioneering scholar in the
field of law and economics in conducting the course in competition
and monopoly, or, you might say antitrust law, which Robert Bork
took as a student in the spring of 1953, just before he received his
law degree.
He then stayed on for an additional year at the invitation of the
law faculty as a research associate in the law school's program in
law and economics, and during that year he wrote a most impor-
tant essay on vertical integration and the Sherman Act, "The
Legal History of an Economic Misconception."
In 1973, after years in the practice of law, and in teaching at
Yale Law School, Robert Bork, as we know, became Solicitor Gen-
eral of the United States, and I was most fortunate to have him in
the Department of Justice as Solicitor General when I became At-
torney General in February 1975.
We worked together with our other colleagues, including Harold
Tyler, and many, many others, with what I trust was a sensitivity
to the basic values of the law.
I recite these facts by way of disclosure, and also to claim some
basis for having an informed judgment about him. I gather from
the questions which have been asked of Robert Bork, that there is
an understandable interest in four questions, and then, perhaps, a
final question.
The first question is does he have views, and the answer to that
clearly is yes, he does. He has an inquiring and powerful mind. He
cares about our society and he cares about people, and he cares
about we can best have a good society under our constitutional
system.
(llll)
1112
When I first knew him he was a student responding to the writ-
ings of the great philosophers, and was also learning about the
craft and techniques of the law.
It may be of interest to you to know that the first assignment in
the elements course which he took in 1948 was the first book of
Plato's "Republic" which is about the meaning of justice.
Socrates, in that book, is attempting to answer the charge that
justice is nothing other than that which is advantageous to the
stronger.
Socrates appears to have demolished such a charge, but is clearly
not satisfied, nor should he have been with his own answer.
Now, if you think about that, and the terms of the development
and the retention of persistent inquiries, Robert Bork speaking at
the University of San Diego School of Law, in 1985, spoke about
the Madisonian dilemma, the evolution of which he said has
always been and always will be the problem for constitutional law.
The United States, Bork said, was founded as what we now call a
Madisonian system, one which allows majorities to rule in wide
areas of law, simply because they are majorities, but which also
holds that individuals have some freedoms that must be exempt
from majority control.
The dilemma, he said, is that neither the majority nor the minor-
ity can be trusted to define the proper sphere of democratic author-
ity and individual liberty.
The first would court tyranny by the majority, the second tyran-
ny by the minority. Over time, Bork said, it has come to be thought
that the resolution of this problemthe definition of majority and
minority freedomis primarily the function of the judiciary, and
most especially the function of the Supreme Court.
That understanding, which now seems a permanent feature of
our political arrangements, creates the need for constitutional
theory. The courts must be energetic to protect the rights of indi-
viduals, but they must also be scrupulous not to deny the major-
ity's legislative right to govern.
And then he says, asks the question, how can that be done?
Now the second question is, does he change his views? Here, I
think the answer is also, clearly, yes. We know he has done so.
There was a time when he took the position, not unknown to some
quite distinguished economistswhich does not make their views
on this correctthat civil rights could be better protected simply
through the removal of government-imposed segregation, a position
which he later rejected.
One of the consequences of having an inquiring mind is that you
do change positions. The third question is would he change his
views for personal gain?
To that, my experience with him is that I give a resounding no. I
have never seen that happen in my experience with him. I am cer-
tain his integrity and inner strength, and the value he places on
collective discourse would not permit that. And the fourth question
is, are his views appropriate for a Supreme Court Justice?
The answer to this I think is yes, because he is concerned about
those fundamental matters which a Supreme Court Justice should
be concerned about, and because he has the knowledge and legal
craftsmanship necessary for a truly great Justice.
1113
I know there is concern about Roe v. Wade and the right of pri-
vacy, but Roe v. Wade is not in trouble because of Robert Bork.
In 1976, Archibald Cox, in his book "The Role of the Supreme
Court in American Government" wrote about Roe v. Wade as fol-
lows:
My criticism of Roe v. Wade is that the Court failed to establish the legitimacy of
the decision by articulating a precept of sufficient abstractness to lift the ruling
above the level of a political judgment based upon the evidence currently available
from the medical, physical, and social sciences.
And Cox continues:
Nor can I articulate such a principle, unless it be that a State cannot interfere
with individual decisions relating to sex, procreation and family, with only a moral
or a philosophical state justification, a principle,
Cox says:
which I cannot accept or believe will be accepted by the American people.
The failure to confront the issue in principle termsI am still reading Cox
leaves the opinion to read like a set of hospital rules and regulations whose validity
is good enough this week but will be destroyed with new statistics upon the medical
risks of childbirth and abortion, or new advances in providing for the separate exist-
ence of a fetus.
Neither historian, layman, nor lawyer will be persuaded that all the details pre-
scribed in Roe v. Wade are part of either the natural law or the Constitution.
Then Cox goes on to say:
Constitutional rights ought not be created under the due process clause, unless
they can be stated in principles sufficiently absolute to give them roots throughout
the community and continuity over significant periods of time, and to life them
above the level of the pragmatic political judgments of a particular time and place.
I may add that Mr. Cox has also written copiously about Roe v.
Wade in his new book just out, "The Court and the Constitution." I
have a quote from that but I am not going to add it. I do not think
it basically changes his position. It reflects a continued worry.
I think of both Roe v. Wade and the right of privacy as a sepa-
rate concept. If they are to continue in the structure of our law,
need a lawyer to establish a better basis for them. I do not know
how he would come out, but I would trust Robert Bork to try to do
that.
I suppose the final and all-embracing question about Bob Bork is
what kind of a person is he? I certainly would not want to fault
him for reading philosophy or economics, or being learned, or being
concerned that the inner structure of the law is kept firm as the
law develops, and changes as it must.
Or that the legitimacy of the Supreme Court is recognized so
that in times of great stress and needas during the period of the
civil rights movementits mandates are obeyed.
Nor would I really fault him for talking so much, or changing his
mind, and looking for a better answer. He speaks because he wants
an answer, he is trying out his views, and he hopes, if you do not
agree, he will convince you or you will convince him, or that out of
it a discussion will arise, a new understanding.
The law progresses through that kind of criticism, and through
collegiality, and this really has been the strength of our special
common law, which is our constitutional law.
In my experience with him, I would say that Judge Bork is an
able person of honor, kindness, and fairness, and I would say with
1114
practical wisdom, which he has shown as an outstanding Solicitor
General, and an outstanding and eloquent judge, and for the sake
of our country, I very much hope he will be confirmed.
1115
STATEMENT OF THE HONORABLE EDWARD LEVI
ON THE CONFIRMATION OF ROBERT H. BORK TO BE AN
ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT
Five years ago I had the honor of speaking at the formal
investiture of Robert Bork as a Judge of the United States Court of
Appeals. I tnen stated that my credential for this privilege was
that he was my friend, and that my association with him began years
ago when he was a student at the University of Chicago. Robert
Bork came to the University after service in the Marine Corps,
I believe I was the professor in the first class which he took in
the law school - that was in 1948. It was a course in jurisprudence
called Elements of the Law. Robert Bork was called back to military
service in 1950, and returned as a law student in the summer of
1952. I claim that I taught the last course he took as a law
student. I participated with Aaron Director, an influential and
pioneering scholar in the tield of law and economics, in conducting
the course in Competition and Monopoly, which Robert Bork took as a
student in the Spring of 1953, just before he received his law
degree. He then stayed on for an additional year at the invitation
of the law faculty, as a research associate in the law school's
program in law and economics. During that year he wrote an important
essay on Vertical Integration and the Sherman Act: The Legal
History of an Economic Misconception. In 1973, after years in the
practice of law and in teaching at Yale Law School, Robert Bork
became Solicitor General for the United States. I was most fortunate
to have him there when I became Attorney General in February 1975.
For almost two years thereafter we were colleagues in the Department.
We worked tjucjtn._r rfinn out OL.-.-JT o.i..,,, ,, including Harold
Tyler rnJ -a-./, --, *v o r" ~ r T , v tl~ *'-;- T I- , ,H I;-JS a sensitivity
to the basic valjos of tv} liw.

1116
I recite these facts by way of disclosure and also to claim
some basis for having an informed judgment about him.
I gather from the questions which have been asked of Robert
Bork that there is understandable interest in four questions, and
then perhaps a final question. The first question is "Does he
have views?" The answer to that clearly is "yes he does." He
has an inquiring and powerful mind. He cares about our society,
and he cares about people, and he cares about how we can best have
a good society under our constitutional system. When I first
knew him, he was a student responding to the writings of the
great philosophers, and was also learning about the craft and
techniques of the law. It may be of interest to you to know that
tne first assignment in the Elements course which he took in 1948
was the first book of Plato's Republic, which is about the meaning
of justice. Socrates in that book is attempting to answer the
charge that justice is nothing other than that which is advantageous
to the stronger. Socrates appears to have demolished such a charge
but is clearly not satisfied - nor should he have been with his own
answer. Robert Bork, speaking at the University of San Diego
School of Law in 1985, spoke about the Madisoman dilemma - the
revolution of which he said has always been and always will be the
problem for constitutional law. "The United States," Bork said,
"was founded as what we now call a Madisoman system, one which
allows majorities to rule in wide areas of life simply because
they ar ; najonties, but which also holds that individuals have
so.ne freedoms that must be exempt from majority control. The
dilemma is that neither the majority nor the minority can be trusted
to define the proper sphere of democratic authority and individual
liberty. The first would court tyranny by the majority; the second,
tyranny by the minority."
"Over time" Bork said, "It has come to be thought that t.ie
resolution of the Madison problem - the definition of majoritv and
minority freedom - is primarily the function of the judiciary, and
most especially, the function of the Supreme Court. That
understanding, which now seems a permanent feature of our political
arrangements, creates the need for constitutional theory. The

1117
courts must be energetic to protect the rights of individuals, but
they must also be scrupulous not to deny the majority's legislative
right to govern. How can that be done.
The second question is "Does he change his views?" Here
I think the answer is also clearly "yes". We know he has
done so. There was a time when he took the position, not
unknown to some economists, that civil rights could be better
protected simply through the removal of government imposed
segregation - a position which he later rejected. One of the
consequences of having an enquiring mind is that you do change
pos itions.
The third question is would he change his views for
personal gain? To that I give a resounding "no". I have
never seen that happen in my experience with him. I am
certain his integrity and inner strength and the value he
places on collective discourse would not permit it.
The fourth question is: "Are his views appropriate for
a Supreme Court justice?" Tne answer to this is "yes",
because he is concerned about those fundamental matters which
a Supreme Court Justice should be concerned about, and because
he has the knowledge and legal craftsmanship necessary for a
truly great justice.
I know there is concern about Roe v. Wade and the right
of privacy. But Roe v. Wade is not in trouble because of
Robert Bork. In 1976 Arhibald Cox in his book "The Role of
the Supreme Court in American Government" wrote about Roe v.
Wade as follows: "My criticism of Roe v. Wade 13 than tie
Court failed to establish the legitimacy of the decision by
articulating a precept of sufficient abstractness to lift the
ruling above the level of a political judgment based upon the
evidence currently available from the medical, physical, and
social sciences." Cox continues, Nor can I articulate such
a principle-unless it be that a State cannot interfere with
individual decisions relating to sex, procreation, and family
with only a moral or philosophical State justification: a
principle which I cannot accept or believe will be accepted
by the American people. The failure to confront the issue in

1118
principled terras leaves the opinion to read like a set of
hospital rules and regulation, whose validity is good enough
this week but will be destroyed with new statistics upon the
medical risks of childbirth and abortion or new advances in
providing for the separate existence of a fetus. Neither
historian, laymen, nor lawyer will be persuaded that all the
details prescribed in Roe v. Wade are part of either the
natural law or the Constitution. Cox goes on to say
constitutional rights ought not be created under the Due
Process Clause unless they can be stated in principles
sufficiently absolute to give them roots throughout the
community and continuity over significant periods of time,
and to lift them about the level of the pragmatic political
judgments of a part 1 CJ1=I - tine and place." (I may add that
Mr. Cox has also written copiously about the problems of Roe v.
Wade, m his new book, The Court and the Constitution).
I think both Roe v. Wade and the right of privacy as a
separate concept, if they are to continue in the structure
of our law, need a lawyer to establish a better basis for
them. I don't know how he would come out, but I would trust
Robert Bork to try to do that.
I suppose the final and all embracing question about Bob
Bork is what kind of a person is he. I certainly would not
want to fault him for reading philosophy or economics, or
being learned, or being concerned that the inner structure of
the law is kept firm as the law develops and changes as it
must, or that the legitimacy of the Supreme Court is recognized
so that in times of great stress its mandates are obeyed.
Nor would I really fault him for talking so much or changing
his mind and looking for a beter answer. Bob Bork speaks
because he wants an answer; he is trying out his views and he
hopes if you don't agree, he will convince you or you will
convince him, or that out of the discussion will arise a new
understanding. The law progresses through criticism, and
through collegiality, and this really has been the strength of
our special common law.

1119
Judge Bork is an able person, of honor, kindness, and
fairness and, I would say, with practical wisdom, which he
has shown, as an outstanding Solicitor General and an
outstanding and eloquent judge. For the sake of our country,
I very much hope he will be confirmed.

1120
The CHAIRMAN. Thank you. We are going to proceed right to
questions, General Levi, and then if you do not mind, General
Smith, and to give you an opportunity to catch your plane, and I
will forebear and probably submit only two questions to you in
writing, and I yield to my colleague from South Carolina.
General Levi, we are glad to see you again, and glad to have you
back in Washington.
You were Attorney General during the presidency of Gerald
Ford, I believe. During your time at least there was one appointee
to the Supreme Court, Justice Stevens, was it not?
Mr. LEVI. Yes.
Senator THURMOND. Was there another, or was he the only one?
Mr. LEVI. He was the only one. It was the only opportunity we
had.
Senator THURMOND. HOW is that?
Mr. LEVI. It was the only opportunity that we had.
Senator THURMOND. That is right.
Now we have been going on here for days and days, and hours
and hours, discussing equal protection, racial matters, privacy mat-
ters, executive power, and free speech, and all those things.
There is no use in going into all of these questions with you.
There is only one question we ought to know from you, and that is
this. Is it your opinion that Judge Bork has the competency, the
dedication, the courage, the character and integrity, and the fair-
ness to be a Justice of the Supreme Court?
Mr. LEVI. Absolutely.
Senator THURMOND. That is all. Thank you.
Senator METZENBAUM. NO questions.
The CHAIRMAN. Senator Hatch.
Senator HATCH. I do not think this works.
The CHAIRMAN. It is not a plot, Orrin. I noticed that, too. Hold on
just a second. There you go. Now it is working.
Senator HATCH. Once again, you have known Judge Bork all of
his life, or, most of his life, certainly his professional life, from
since the time he went to law school, and you, better than anyone
else, it seems to me would know, if his judicial philosophy is diffi-
cult to predict or has made marked changes.
Have you, during the time that you have known him, or during
his TV testimony, or during his work as a judge, have you seen any
significant shifts in his judicial philosophy or his judicial method?
Mr. LEVI. I think his judicial philosophywell, you have to take
itduring the period that he has been a judge, I don't know that I
see dramatic shifts in his philosophy. If one takes it over the entire
span of his career before he was a judge and before he was a gov-
ernment official, it is quite clear that he went in many different
directions. By the time I saw him and worked with him as Solicitor
General, I really have not seen dramatic changes; in part, because
I think that his judicial philosophy is really quite central.
He works with the cases. He worries about those cases that his
great predecessor judges all worried about, and I think he tries
very hard to see how they can be worked into that kind of a struc-
ture where the law can be applied equally, which is, after all, an
1121
important part of justice. So I think there is an inner consistency
to what he has done, but I also think that his views have changed.
And I am not sure that his discussion with this rather strange as-
sembly, if I may call you that, may not have hadmay not have
given him some thoughts, too.
That is, I explained, his method of working is to talk and in a
sense to try to change his position. That is, to try to understand, to
say am I right? If I am not right, tell me why I am wrong. It is true
that the conversation I guess sometimes has been rough, but never
really in the conversations with me.
The CHAIRMAN. If I may interrupt just a second. I have no inten-
tion of keeping you from speaking, General. I just want to remind
you it is 5:30 now. You are welcome to stay and speak and my col-
leagues are welcome to ask you questions as long as they want be-
cause you deserve every bit of our attention. But I just want you to
know it is 5:30, and they tell me your plane is at 6:15.
Senator HATCH. Well, I am only going to ask one more question,
and mainly I will make it a statement, and that is one other prob-
lem that has arisen is the controversy in the Ford administration
over the pocket veto. We have heard that Judge Bork, some people
think he always sides with the executive branch against Congress.
Yet here, while in the executive branch, he argued and eventually
prevailed in defending Congress' rights against the executive, and
to do this he had to overcome, as I understand it, executive opposi-
tion in the White House. But, ultimately, President Ford agreed
with him and it went forward.
Is that a fair characterization of the pocket veto situation?
Mr. LEVI. It is. It is, yes.
Senator HATCH. Well, that is fine. That is all we need.
Mr. LEVI. I would like to add, if I can, very quickly and still
catch a plane, that I know also that there may be some interest in
the Boston school desegregation case which came up when I was
Attorney General. He was Solicitor General.
There had been a decision of the court of appeals. The govern-
ment was not a party, but there was a question as to whether we
should file an amicus brief asking the Supreme Court to take the
case. And that became a rather notorious incident, because even
though we had 2 months of serious discussion about it at the De-
partment hoping that it was a confidential discussion, of course it
leaked and it became known all over the country and so on.
I understand from some quarter that there is a kind of a rumor
that Solicitor General Bork wanted us to file the amicus brief to
overturn the court of appeals decision which provided for large-
scale, as you know, compulsory busing and what not. But we decid-
ed not to file the amicus brief, and I want to assure your commit-
tee that that was a judgment reached by both Judge Bork and me.
Senator HATCH. Well, thank you, sir.
The CHAIRMAN. Senator Heflin?
Senator HEFLIN. I will let you catch your plane.
The CHAIRMAN. Senator Grassley?
Senator GRASSLEY. NO questions.
The CHAIRMAN. Senator Specter?
Senator SPECTER. One question only. Attorney General Levi, you
commented that Roe v. Wade was not in trouble because of Judge
1122
Bork, and then you quoted extensively from a statement made by
Archibald Cox. And you said that what the case needed was a
better lawyer and that you don't know how it would turn out, and I
believe you said that you trust Robert Bork on that.
Do you mean to suggest that you think that he would uphold Roe
v. Wade?
Mr. LEVI. Well, one can't make predictions of that kind. I think
that I can predict this. That a Supreme Court Justice faced with
the problem of a case such as Roe v. Wade would not take lightly
the notion of overruling it.
It is a part of the fabric of our law, to some extent, but there is
something wrong with it. It is misshapen. It doesn't fit. It does not
pass the law that some of you may recall, the Karl Llewellyn law
of fitness and flavor. It just is a strange thing. It reads like a stat-
ute. It is not clear what part of the Constitution it comes from. Its
scope is uncertain, and it is based ongives a great deal of cre-
dence to particular evidence which may completely shift it. And it
is also not clear, and there will be many more cases on that, as to
how it is applied.
So it really needs some lawyer-like attention. And I think as
Judge Bork has said repeatedly, and I would say, I don't think the
question is so much the result, although that kind of a result can
perhaps be reached in much better ways, but the case itself cries
out for a reformulation, a reunderstanding. Something has to be
done.
One of the law professors, I think in an admiring way, said that
it was a happening. It wasn'tit is not, a reasoned case. It was just
a happening.
Senator SPECTER. Attorney General Levi, Judge Bork shifted his
position on the clear and present danger test and expanded his
view of equal protection of the law, but when it came to privacy in
Griswold he talked in generalized principles about stare decisis but
he made no commitments to this committee.
One of the cases that he decided on the court of appeals was
Dronenburg involving the issue of discharge by the Navy of a ho-
mosexual, and in that case Judge Bork dealt directly with the issue
of Griswold, disagreeing with it so much when there was a petition
for consideration by the court en bane the other judges who hadn't
sat on the case criticized Judge Bork for criticizing the Supreme
Court, and Judge Bork then wrote another opinion saying that he
felt, although bound by the Supreme Court decision, the necessity
to comment or criticize it and that it would be disassembling if he
didn't raise that kind of an issue.
So on that very forceful opinion in an exchange with the balance
of the court, it seems to me Judge Bork has spoken rather explicit-
ly recently as a judge on the Griswold issue. So that I would find it
surprising, but I am interested in your view, that there is aI see
you articulating there is some realistic chance in your view that he
would uphold the doctrine of privacy in the conclusion of Roe v.
Wade.
Mr. LEVI. I am not sure that it would be put in terms of the doc-
trine of privacy. That is really one of the problems. If you take
Griswold as a settled case, and based on the facts, nobody would
want to reopen that or do anything about it.
1123
It is not the result in that case that is now upsetting. It is that
privacy is a construct that hasn't been worked out. No one knows
its limitations, and the language itself is not helpful. And since one
can't pointand there isn't agreement as to what part of the Con-
stitution to point to in terms of helping to define itit needs more
work. It needs more lawyer's work.
Senator SPECTER. Well, I would like to pursue it, but we know
the limitation of 6:15. Thank you very much, Attorney General.
The CHAIRMAN. I would ask my colleagues toit is important the
Attorney General catch the plane. I would ask them to forebear
and let him catch his plane and submit their questions in writing. I
hate to do that to those who haven't asked yet, but I know of no
other way for him to be able to do it. Objection?
Senator METZENBAUM. He is not going to make the 6:15.
The CHAIRMAN. Well, he has time to make it, and we could prob-
ably get you a police escort to do it. I will talk to somebody impor-
tant.
Senator Thurmond, would you see about getting a police escort
for General Levi?
Thank you very much, General.
General Smith, welcome. Thank you for your forbearance. It is
nice to see you back before this committee. I know it is some trav-
ail to come back East like this, but you are here to testify on an
important matter, we take your opinion very seriously, and please
proceed.
I am going to insist that my colleagues stick to 10 minutes in
their questioning. I am now going to begin to cut every one of my
colleagues off that go beyond 10 minutes.
TESTIMONY OF HON. WILLIAM FRENCH SMITH
Mr. SMITH. Thank you very much, Mr. Chairman. I should say
that I am very pleased to be back, but particularly pleased to know
that I can also leave. [Laughter.]
I want to express my thanks to you for being solicitous about
these airplane schedules. They are a factor of life, and we are
grateful to you for doing that.
I wanted to adopt as my own the comments of Attorney General
Levi with respect to Judge Bork, and then to add some comments
on my own which reflect the experience that I have had with him.
Before doing that, though, I know that Senator Specter has been
very interested in this question of Griswold v. Connecticut and the
right of privacy, and I thought I might just relate to him the fact
that I have a friend who was a very close friend of Justice Black,
who asked Justice Black why he had dissented in that case. And
Justice Black responded by saying, "Do you want nine old men"
and they were nine men at that time"to decide and tell each of
the States what laws are good and what laws are bad, particularly
nine old men who make up an institution that has no guidelines in
that area, who has no fact-finding facilities, and must decide only
those cases and controversies that are presented to them, and
whose decisions are final, final, final." That was Justice Black's re-
sponse.
And I think in very simple terms, that raises or puts in focus in
simple terms what the question is here, and the question is what
should the power of the Supreme Court be? What are its powers as
compared to other institutions of government under a system of
separation of powers? And we all know that a power is a power
and it can be exercised any way once it is lodged, and I would spec-
ulate, as would others, as to what the position would be of those
who are opposing Judge Bork for this position if during the last 30
years that power had been exercised to create results contrary to
the ones that have been created during that period.
In other words, if the last 30 years have been made up of Lockner
and a host of other cases of that kind, so that the Supreme Court
in exercising this power had produced a result or a series of results
which were directly contrary to the results that those who now
oppose his nomination would like to see happen, what would they
be saying at this point? What would their position be with respect
to whether or not Judge Bork's viewpoint with respect to so-called
judicial restraint was correct or not? I say that I think it would be
very interesting speculation.
I became intimately familiar with Robert Bork's career in 1981
when evaluating his suitability for appointment to the U.S. Court
of Appeals for the District of Columbia Circuit, perhaps the most
important appeals court after the Supreme Court. In considering
whether to recommend that President Reagan nominate him for
(1124)
1125
this prestigious post, I focused my attention on the three factors
scrutinized by the American Bar Association in evaluating judicial
candidates: personal qualifications, integrity and temperament.
Based on my consideration of these factors, I determined that
Robert Bork was superbly qualified to serve on the court of ap-
peals. Indeed, after an exhaustive search, I concluded that Judge
Bork was the individual best qualified for appointment to the
court.
It was apparent in 1981 that Judge Bork possessed impeccable
professional credentials. He had compiled a superior academic
record at the University of Chicago, where he served as executive
editor of the University of Chicago Law Review. He had established
a reputation as a legal scholar of the first rank during his 15 years
of service on the Yale Law School faculty. He had also enjoyed a
very successful career in private practice, having been elected to
the partnership of Kirkland and Ellis. Last, but certainly not least,
Robert Bork had rendered exemplary public service during a 4-year
stint as Solicitor General of the United States. No one was better
qualified professionally to sit on the court of appeals than Robert
Bork.
In assessing Judge Bork's integrity, I closely scrutinized his writ-
ings and his record. His writings on judicial philosophy had
stressed that a judge should be faithful to the words of the statuto-
ry and constitutional provision being interpreted. This philosophy
is one that I, like Judge Bork, strongly endorse. It promotes judi-
cial integrity. It is faithful to the rule of law. It constrains judges
from imposing their own policy preferences on the public without
legal authority. It thereby enhances predictability and respect for
the law. In short, this philosophy requires that the law be applied
fairly and consistently. It is a classic approach to judging with re-
straint. Judge Bork and I agree that it is the only approach that is
truly compatible with our constitutionally-based, democratic form
of government.
Judge Bork's record indicated that his conduct on the bench
would be true to the model of judicial integrity that his writing so
elegantly described. As a private practitioner, as a law professor
and as a public servant, he had met the highest standards of integ-
rity.
I closely studied the circumstances surrounding the evening
when Solicitor General Bork obeyed President Nixon's order to dis-
miss Watergate Special Prosecutor Archibald Cox. I concluded that
Judge Bork s actions under extremely trying circumstances demon-
strated the highest possible integrity. As former Attorney General
Eliot Richardson has indicated, Bork very properly acted to fore-
stall a series of mass resignations that could have decimated the
Justice Department and diminished its effectiveness.
Judge Bork moved decisively in convincing President Nixon to
name a new Special Prosecutor with undiminished authority, Leon
Jaworski. The result was a successful culmination of the Watergate
investigation. In short, Solicitor General Bork accomplished the ex-
tremely difficult dual tasks of preserving the effectiveness of the
Justice Department, while keeping the Watergate Special Prosecu-
tion force alive. To my mind, his performance at that time exempli-
fied his exceptional character and extremely sound judgment.
1126
My study of Robert Bork's record also prompted the conclusion
that he possessed the requisite temperament to be a successful,
fair-minded judge. His writings indicated that judges should neu-
trally apply the law to the facts presented. Such an approach aptly
describes the behavior of jurists who possess true judicial tempera-
ment. Those who knew Robert Bork attested to his fair-minded-
ness, his sense of humor and his balancecharacter traits that are
synonymous with the possession of judicial temperament.
My personal contacts with Robert Bork certainly convinced me
that his temperament was ideally suited for the Federal bench. The
American Bar Association fully agreed with my assessment of
these qualifications, of his integrity and of his temperament. The
ABA rated him exceptionally well qualified for appointment to the
court of appeals, the highest possible rating. The full Senate, of
course, unanimously confirmed Judge Bork for that court.
Having studied Robert Bork's 5-year record on the court of ap-
peals, I am more than ever convinced that the Senate made a wise
choice in consenting unanimously to his nomination. Simply put,
Judge Bork's judicial record is marked by great distinction, high in-
tegrity and true judicial temperament. None of Judge Bork's ma-
jority opinions has been reversed by the Supreme Court, and only
one of those opinions was reversed by the DC Circuit en bane; and,
notably, this en bane reversal of his panel opinion was authored by
Judge Bork himself.
Some critics of Judge Bork's nomination nevertheless have cate-
gorized particular holdings of his as being for or against certain in-
terests. That seems to be the substance of most of the objections
that I have heard during these proceedings.
With all due respect, those critics are simply missing the point.
Judge Bork neutrally and fairly applies the law to the facts at
hand; he does not approach a case by asking which side deserves to
win. All judges reach substantive results that are displeasing to
particular interest groups. It is part and parcel of the judicial task
that one side will lose.
In evaluating a judge's ability, the key question is not who won,
but rather, how did the judge reach his or her decision. Evaluated
according to that standardthe correct standardthere is no ques-
tion that Judge Bork has been an outstanding jurist.
Five years ago, Robert Bork was superbly qualified to sit on the
Supreme Court. His distinguished judicial service on the court of
appeals has only served to enhance his qualifications. Former Chief
Justice Burger recently stated that there has not been a better-
qualified Supreme Court nominee than Judge Bork over the past
50 years. And Justice Stevens has echoed those sentiments, as do I.
In my view, there is no one better-qualified to sit on the Supreme
Court.
In sum, Judge Bork is a highly distinguished, fair-minded jurist
and scholar of the highest professional integrity. He has all the
earmarks of a great Supreme Court Justice.
On a personal level, let me add that Judge Bork is not just a
great judge; he is a delightful, good-natured person whose balance,
temperament and keen sense of humor will always stand him in
good stead.
1127
I strongly recommend that you confirm his recommendation to
the Supreme Court.
Thank you.
1128
STATEMENT OF THE HONORABLE WILLIAM FRENCH SMITH, FORMER ATTORNEY

GENERAL OF THE UNITED STATES, BEFORE THE SENATE COMMITTEE ON THE
JUDICIARY, ON BEHALF OF THE NOMINATION TO THE SUPREME COURT OF
JUDGE ROBERT HERON BORK
Mr. Chairman and Members of the Committee. I am honored to
appear before you today to testify in favor of President Reagan's
nomination of Judge Robert H. Dork to the Supreme Court. Judge
Bork is a distinguished jurist of the highest integrity. I am
convinced that, if confirmed, Judge Bork would render outstanding
service on the Court.
I became intimately familiar with Robert Bork's career in
1981, when evaluating his suitability for appointment to the
United States Court of Appeals for the District of Columbia
Circuit perhaps the most important appeals court after the
Supreme Court. In considering whether to recommend that
President Reagan nominate him for this prestigious post, I
focused my attention on the three factors scrutinized by the
American Bar Association in evaluating judicial candidates:
professional qualifications, integrity, and temperament. Based
on my consideration of these factors, I determined that Robert
Bork was superbly qualified to serve on the Court of Appeals.
Indeed, after an exhaustive search, I concluded that Judge Bork
was the individual best qualified for appointment to that Court.
It was apparent in 1981 that Judge Bork possessed impeccable
professional credentials. He had compiled a superior academic
record at the University of Chicago, where he served as Executive
Editor of the University of Chicago Law Review. He had
established a reputation as a legal scholar of the first rank,
during his 15 years of service on the Yale Law School Faculty.
He had also enjoyed a very successful career in private practice,
having being elected to the partnership at Kirkland and Ellis.
Last but certainly not least, Robert Bork had rendered exemplary
public service during a four year stint as Solicitor General of
the United States. No one was better qualified professionally to
sit on the Court of Appeals than Robert Bork.

1129
In assessing Judge Bork's integrity, I closely scrutinized
his writings and hi record. His writings on judicial philosophy
had stressed that a judge should be faithful to the words of the
statutory or constitutional provision being interpreted. This
philosophy is one that I, like Judge Bork, strongly endorse. It
promotes judicial integrity. It is faithful to the rule of law.
It constrains judges from imposing their own policy preferences
on the public without legal authority. It thereby enhances
predictability and respect for the law. In short, this
philosophy requires that the law be applied fairly and
consistently. It is the classic approach to judging with
restraint. Judge Bork and I agree that it is the only approach
that is truly compatible with our constitutionally-based,
democratic form of government.
Robert Bork's record indicated that his conduct on the bench
would be true to the model of judicial integrity that his
writings so eloquently described. As a private practitioner, as
a law professor, and as a public servant, he had met the highest
standards of integrity.
I closely studied the circumstances surrounding the evening
when Solicitor General Bork obeyed President Nixon's order to
dismiss Watergate Special Prosecutor Archibald Cox. I concluded
that Robert Bork's actions under extremely trying circumstances
demonstrated the highest possible integrity. As former Attorney
General Elliot Richardson has indicated, Bork very properly acted
to forestall a series of mass resignations that could have
decimated the Justice Department and diminished its
effectiveness. Bork moved decisively in convincing President
Nixon to name a new Special Prosecutor with undiminished
authority, Leon Jaworski. The result was the successful
culmination of the Watergate investigation. In short, Solicitor
General Bork accomplished the extremely difficult dual tasks of
preserving the effectiveness of the Justice Department while
keeping the Watergate Special Prosecution force alive. To my
mind, his performance at that time exemplified his exceptional
character and extremely sound judgment.

1130
My study of Robert Bork's record also prompted the
conclusion that he possessed the requisite temperament to be a
successful, fair-minded judge. His writings indicated that
judges should neutrally apply the law to the facts presented
them. Such an approach aptly describes the behavior of jurists
who possess true judicial temperament. Those who knew Robert
Bork attested to his fair-mindedness, his sense of humor, and his
balance character traits that are synonymous with the
possession of judicial temperament. My personal contacts with
Robert Bork certainly convinced me that his temperament was
ideally suited for the federal bench.
The American Bar Association fully agreed with my assessment
of Judge Bork's qualifications, integrity, and temperament. The
ABA rated him "exceptionally well qualified" for appointment to
the Court of Appeals the highest possible rating. The full
Senate, of course, unanimously confirmed Judge Bork for that
Court.
Having studied Robert Bork's five year record on the Court
of Appeals, I am more than ever convinced that the Senate made a
wise choice in consenting unanimously to his nomination. Simply
put, Judge Bork's judicial record is marked by great distinction,
high integrity, and true judicial temperament. None of Judge
Bork's majority opinions has been reversed by the Supreme Court,
and only one of those opinions was reversed by the D.C. Circuit
en bane. Notably, this en bane reversal of his panel opinion was
authored by Judge Bork himself, thus demonstrating his open-
mindedness. -1-
Some critics of Judge Bork's nomination nevertheless have

categorized particular holdings of his as being "for" or
"against" certain interests. With all due respect, those critics
are simply missing the point, and I might say that is a vast
-'-Natural Resources Defense Council v. Thomas (D.C. Cir. July

28, 1987) (Bork, J.) (en bane) (slip o p . ) , overruling Natural
Resources Defense Council v. Thomas. 804 F.2d 710 (D.C. Cir.
1986) (Bork, J . ) .
1131
understatement. Judge Bork neutrally and fairly applies the law
to the facts at hand he does not approach a case by asking
which side "deserves" to win. All judges reach substantive
results that are displeasing to particular interest groups. It
is part and parcel of the judicial task that one side will lose.
In evaluating a judge's abilities, the key question is not "who
won," but rather "how did the judge reach his or her decision?"
Evaluated according to that standard -- the correct standard --
there is no question that Judge Bork has been an outstanding
jurist.
Five years ago Robert Bork was superbly qualified to sit on
the Supreme Court. His distinguished judicial service on the
Court of Appeals has only served to enhance his qualifications.
Former Chief Justice Burger recently stated that there has not
been a better-qualified Supreme Court nominee than Judge Bork
over the past 50 years. Justice Stevens has echoed these
sentiments. So do I. In my view, there is no one better
qualified than Judge Bork to sit on the Supreme Court.
In sum, Judge Bork is a highly distinguished, fair-minded
jurist and scholar of the highest professional integrity. He has
all the earmarks of a great Supreme Court Justice. On a personal
level, let me add that Judge Bork is not just a great judge. He
is a delightful, good-natured person whose balanced temperament
and keen sense of humor will always stand him in good stead. I
strongly recommend that you confirm his nomination to the Supreme
Court.
1132
Senator Thurmond?
Senator THURMOND. Mr. Attorney General, we are glad to see
you again. We hope you and your lovely wife are enjoying good
health.
Mr. SMITH. Thank you.
Senator THURMOND. I just want to ask you this question. The
American Bar Association, as you indicated, has found him excep-
tionally well-qualified. Do you agree with that conclusion?
Mr. SMITH. Completely.
Senator THURMOND. The American Bar Association considers in-
tegrity, judicial temperament, and professional competence; is that
correct?
Mr. SMITH. That is correct.
Senator THURMOND. Does he meet the specifications of those
qualities to be a Supreme Court Justice?
Mr. SMITH. On all three counts, in my opinion, Senator.
Senator THURMOND. DO you know of anything that Judge Bork
has said or done that should disqualify him to be a Supreme Court
Justice?
Mr. SMITH. I do not.
Senator THURMOND. DO you recommend to this committee that
they approve his confirmation to the Supreme Court?
Mr. SMITH. AS one who proposed his nomination to the President
for the circuit court, I certainly strongly endorse the recommenda-
tion and his nomination to the Supreme Court.
Senator THURMOND. Thank you very much.
The CHAIRMAN. Senator Leahy?
Senator LEAHY. Thank you, Mr. Chairman.
Mr. Attorney General, I concur with Senator Thurmond, wishing
you and Mrs. Smith the best. I hope you are enjoying California.
Mr. SMITH. Thank you very much; very much so.
Senator LEAHY. On page 4 of your statement, you said none of
Judge Bork's majority opinions have been reversed by the Supreme
Court. Do you know how many of his opinions have had cert grant-
ed?
Mr. SMITH. NO, I do not. I do know that he has been involved in
some 100 decisions that certainly could have arrived there. How
many petitions for cert were filed, or how many granted, I just
could not tell you offhand.
Senator LEAHY. Well, I should note for the record, because a
number of people have said that he has never been reversed by the
Supreme Court, that only one of his cases, only one of his majority
opinions has gone up on cert, and that is presently pending before
the Supreme Court. It has not yet been heard.
Some others, cert has been denied, and some of his dissents have
become the basis of a subsequent majority opinion.
But just so that people will fully understand, only one of his ma-
jority opinions has had cert granted.
Mr. SMITH. Well, actually, Senator, I think the significant fact is
that he has not been reversed. The rest of
Senator LEAHY. Well, it has not been heard yet, so we do not
know whether it is going to be reversed or not.
1133
Mr. SMITH. Well, but at the same time it seems to me that this is
pretty much statistical nonsense. When you have the Chief Justice,
and you have Justice Stevens, who certainly cannot be character-
ized as a right-wing idealogue, coming out, which is highly unusual,
and in effect supporting his nomination, I think that speaks
Senator LEAHY. Well, yes. And of course, that is an entirely dif-
ferent thing, and we will be speaking to Chief Justice Burger. That
is an entirely different thing. And I agree with you, it could be sta-
tistical nonsense. I was just concerned by a number of people who
have spoken that on 400 cases, he has never been reversed. I have
had people ask me about that in Vermontwhat about his 400
cases in the Supreme Court. And I just want to make sure that
people understand that one majority opinion has gone up to the Su-
preme Court where cert has been granted, and that one has not yet
been argued.
That is the statistic, and I think that what is of more signifi-
cance, of course, are the answers that Judge Bork gave in an ex-
traordinary session here last week, where he answered on and on,
all our questions. I think that is what speaks far more in his favor.
I think he is sometimes done a disfavor by peopleand you did not
use that numberbut others have thrown out the number of 400
cases have never been reversed, because it is too easy a statistic to
shoot down.
Mr. SMITH. Well, I think the point there is that if he had been
reversed, let us say 50 percent of the time, or a very high percent-
age, that would be an item of substantial interest and concern. And
the other side of that is the fact that he has never been reversed
once, regardless of what the figures may show, is an item of signifi-
cance, and I think it is something to be considered.
Senator LEAHY. I agree with that. And on the one case where
there is a chance to either uphold or reverse his majority decision,
that decision will come down after these confirmation hearings are
over.
So we are talking about one case, we do not know what the re-
sults are going to be, and none of us will make up our minds, based
on projecting what that result might be.
Mr. SMITH. Well, it is a little like a client saying his lawyer has
never lost a case.
Senator LEAHY. That is true.
Mr. SMITH. If he has never lost a case, he has not tried very
many, or he is only taking sure winners. So those statistics really
do not mean very much, in my opinion.
Senator LEAHY. Well, I absolutely agree with you; they mean
nothing. And that is why I would hope that people would not keep
relying on them.
Mr. SMITH. But there is a significance there. I do not mean to say
there is no significance; I think there is.
The CHAIRMAN. Senator Grassley.
Senator LEAHY. It has escaped me.
The CHAIRMAN. Oh, I am sorry.
Senator LEAHY. That is all.
Senator GRASSLEY. Attorney General Smith, before you came to
the table with Attorney General Levi, you have heard some very
powerful and moving testimony from some people who have some
86-974 0 - 8 9 - 3 8
1134
very deeply-held views. They spoke with considerable passion, and
you heard that. And it ought to give all of us hearing that testimo-
ny some pause. And this Senator and everybody else on this com-
mittee, as far as I know, is not going to retreat one inch from the
gains that have been made in this country to advance equality for
every member of society.
And I do not want, and I do not believe my colleagues want, to
live in a society where such a crabbed view of human liberty is a
rule.
But if all of what was said today were true, we would be left to
conclude that the cause of freedom and our very system of justice
would be undermined, then, by the appointment of Judge Bork to
the Court.
So I guess my fundamental question to you is this. Knowing this
candidate for the Supreme Court as you do, and you have known
him over many years, you have read his writings, you know his
record on the court of appealsyou just discussed that to a great
extentyou have known him when he was Solicitor General, I
assume, although I did not hear you comment on thatmy ques-
tion is, what can you say in response, what can you say to calm the
fears that were expressed for five hours today?
Mr. SMITH. Well, Certainly, so many of the criticisms that have
been made here represent, I think, extreme distortion, because in
essence, as I mentioned before, both in his writing and in his deci-
sions, insofar as I can divine, Judge Bork has been wrestling with
the problem of how powers are distributed in our system of govern-
ment. And in coming to the conclusions that he has come to, it is
applying that test, in effect, grappling with that issue.
That in some cases has produced results that various interest
groups do not like, and as a matter of fact, some results that per-
haps a lot of other people would not like. But it is not because that
is a result he wants to achieve. It is because that is where his legal
reasoning has led him in determining whether a power resides in
this branch or in that branch.
Therefore I think there has been this effort, for example, with
respect to minority rights. I have not heard one word, nor have I
read a single word, from Judge Bork which would indicate any-
thing other than that he feels like all the rest of us do with respect
to discrimination. And any cases that have come out which have
made those who oppose him so unhappy have not come out because
of that being his intent, in any sense of the word. They have come
out because that is the result that is produced by the way he would
allocate the powers among the various branches of government,
and indeed, between the Federal Government and the State; and I
will have to say, in most cases, although I am not that familiar
with all of the decisions, that it is probably where I would come out
in terms of where power should properly be placed.
Senator GRASSLEY. I hope that people who heard this morning's
testimony would take note of what you just said, haying known
Judge Bork over a long period of time, because I do think that we
do need to have reason prevail over fear, if the fear is unjustified.
Mr. Chairman, I am finished.
Senator Metzenbaum?
1135
Senator METZENBAUM. I was just interested in my colleague's
comment that we have to have reason prevail over fear. I gather
that you do not fear Judge Bork; if he goes on the Supreme Court,
you would not worry about how he would hold in cases, would you?
Mr. SMITH. NO, I would not. I think he is a very fair-minded indi-
vidual. I think he is very principled. I think he would apply, for
lack of a better term, neutral principles in coming to the conclu-
sions he comes to.
There has been so much talk here that seems to lead to the con-
clusion that if a right is not protected here, it will not be protected
anywhere else. That is not the way our system works. A right
which is not protected here may very well be protected somewhere
else. But it seems that so much of the talk here is that power
either lies with the Supreme Court or nowhere else, and that is
just not true.
Senator METZENBAUM. But General Smith, it is also fair to say
that you are not necessarily or could you claim to be the spokesper-
son for blacks, or Hispanics, consumers, women. How do you ac-
count for the fact that you do not fear Judge Bork, but millions of
Americans are listening intently to every word that goes on in
these hearings and are more apprehensive about this appointment
than they were about Justice O'Connor; even the confirmation of
Justice Rehnquist, where there was a good deal of oppositionI op-
posed himand Justice Scalia. How do you account for the fact
that in connection with this appointment, there is such fear out
there. You cannot walk down the street without a woman telling
you, "I hope you won't vote for Bork."
I do not care if you are on the plane, when you are flying back to
California tonighttake a poll of the stewardesses on that plane,
wherever. And what bothers me is that you and General Levi
appear before us, tell us what a scholarly and able man Judge Bork
is, but do not seem to have any sensitivity to the fears of millions
of Americans at this very moment, that if Judge Bork goes on the
Bench, things are going to be different, and they are going to be
worse for them.
Mr. SMITH. Well, Senator Metzenbaum, let me say this. I walk
down quite a few streets, and I have not run across the kind of fear
that you are talking about at all. But to the extent that fear exists,
I think a large part of it is due to the misrepresentations and the
distortions and the propaganda that has been put out about this
man. And when I say that, I say it with strong emphasis. That is
exactly what it has been, because offor example, take Roe v.
Wade, or any of these cases
Senator METZENBAUM. Take Griswold, take Griswold, about
whether or not the State of California could ban the right for you
and Mrs. Smith to use contraceptives if you decided to do so in
your bedroom. Take that case and tell me how you justify his posi-
tion.
Mr. SMITH. Well, all right, take that case. What you have done is
propagandize that issue. You
Senator METZENBAUM. "Propagandize", my eye.
Mr. SMITH. YOU are propagandizing, and what you are
Senator METZENBAUM. What you are doing
The CHAIRMAN. Let him answer the question.
1136
Senator THURMOND. Let him answer.
Mr. SMITH. What you are saying is, and the impression you are
creating, is that Judge Bork wants to control the use of contracep-
tives in the bedroom. That is the image you are projecting through
the kind of proganda and distortions being thrown out.
That is not true, and I suspect and I am willing to say you know
it is not true. But that is the impression that is being created. And
you can multiply that by every, single issuerace relations,
women, everything that has come before this group. That is why
there is fear out there.
Senator METZENBAUM. Everything is just a figment of our imagi-
nations?
Mr. SMITH. That is why there is fear out there, is because his
record has not been properly portrayed.
Senator METZENBAUM. Everything is just a figment of our imagi-
nation; is that it, General Smith?
Mr. SMITH. Well, you canI have said what I have to say. You
can characterize it any way you want to.
Senator METZENBAUM. And the court decisions and the state-
ments he has made, and his writings you say we should pay no at-
tention to that
Mr. SMITH. Yes, every single one of those is the result of a good
faith analysis of the distribution of power under our system of gov-
ernmentevery single oneand you know that.
Senator METZENBAUM. Oh, I do not doubt his good faith; I do not
question his good faith at all.
Mr. SMITH. And you convert that into his being opposed to the
races, opposed to women, opposed to contraceptives in the bedroom.
And that is false, and it borders on dishonesty, and it borders on
lying to the American public.
Senator METZENBAUM. I wish there were some supporting evi-
dence to indicate that you are right and I am wrong, but I see no
supporting evidence in his words, in his writings
Mr. SMITH. Maybe you do not. But any objective analysis will es-
tablish the truth of what I have just said.
Senator METZENBAUM. Take a poll of the stewardesses on that
plane you are going home on tonight, General Smith.
Mr. SMITH. I am willing to wager not a single one will have
known that this issue has been raised.
Senator METZENBAUM. YOU name the bet, and I will cover it
about that.
Mr. SMITH. Okay.
The CHAIRMAN. General, I think thatcorrect me if I am
wrongyou stated that it is not the intention of Judge Bork to
reach many of these conclusions, but he goes where his natural,
neutral principles take him.
Mr. SMITH. Yes, and that is a proper function of a judge.
The CHAIRMAN. Right. We can argue about that. I just want to
make sure that you understand. From what I heard from the com-
mittee over the days that he was here, from all the committee
members, including from Senator Metzenbaum, was no question
about whether he personally wanted to control contraceptives in
the bedroom.
1137
Mr. SMITH. NO, but that is the impression that is being created
out there, far and wide.
The CHAIRMAN. Butbutwhether or not he thought that if a
State wanted to, they could. And I believe you would argue, sub-
scribing to the same principles, that where the power rests in the
State, if a State wishes to do that, they should be able to; correct?
Mr. SMITH. Yes. And I do not for one minute purport to say that
this is an easy line to draw. It is a very, very difficult line to draw.
There is just no question about that, and we will be wrestling with
this issue for as long as this system lasts, because it was set up to
create tensions, tensions between three branches. And that is what
all of this is really all about.
The CHAIRMAN. Since I became chairman of this committee and
ranking member, I have spent almost all my energies, as you will
recall, diminishing tension on this committee. And with that in
mind, I am going to try to move on.
Senator Specter?
Attorney General Smith, in the few minutes allotted to me, I
would like to take up the two issues which I consider to be central
to Judge Bork's nominationthe issue of first amendment freedom
of speech, clear and present danger, and the issue of equal protec-
tion of the law.
Judge Bork had written extensively that he disagreed with the
philosophical basis for Justice Holmes' clear and present danger
test. And when he was here last week, he reaffirmed that philo-
sophical opposition, saying that he did not believe that you should
wait until violence was imminent on freedom of speech. Holmes, as
you know, said people should be able to speak until there is a clear
and present danger of violence.
Then, Judge Bork said that notwithstanding his philosophical
views, he would accept the subtle principles of the Brandenburg de-
cision, which incorporated the clear and present danger test.
And the question that I have and would like your thought on is
what is the predictability that Judge Bork can, will, in fact, apply
the subtle law of clear and present danger in a context where he
candidly tells this committee that he disagrees with the philosophy,
and in the context, as you know, where every case is different on
its facts, the precise facts of Brandenburg will not be repeated.
What is the predictability that could assure the committee that
Judge Bork can carry out the subtle principle, conceding that he
disagrees with the philosophy?
Mr. SMITH. Senator Specter, I have been involved in the judicial
selection process for 20 years, at the State level and at the federal
level, in depth. And the result of that experience is, really, that
you cannot predict anything along this line, nor can the candidate
himself. I think it is impossible for a candidate himself really to
say, "This is the way I am going to act when I get on the Bench."
I think it is almost an impossible question to ask him, because by
the time he gets on the Bench, and by the time he faces these
issues, and by the time, particularly on the Supreme Court, when
he starts looking at things through global eyes, his perspective may
be so different and the circumstances so different that what he
says now could be meaningless.
1138
We have seen this happen time and time again. You take Justice
Brennan, you take Justice Warren, you take all of the well-known
examples. I just do not think it is possible to predict.
That all adds up to this conclusion. The important thing to do
when you are selecting a judge is to find somebody who does have
the qualifications, who does have the integrity, who does have the
temperament, to properly perform the function of a judge. That is
really the role, in my opinion, of this committee. It is the role of
the President, the role of the Attorney General in making recom-
mendations to the President.
Senator SPECTER. DO you think that Judge Bork may turn out for
President Reagan like Chief Justice Warren turned out for Presi-
dent Eisenhower?
Mr. SMITH. Well, let me say this. I would not be a bit surprised, I
would not be a bit surprisedand I am not sure I like thisI
would not be a bit surprised if he does not turn out to disappoint
the conservatives more than he turns out to disappoint the liber-
alswhatever those terms mean.
Senator SPECTER. Attorney General Smith, I appreciate the fact
that there is no certainty, predictability, in a finite sense. But
when you selected Judge Bork for the court of appeals, you did so
on the basis of your reading and of your approval, generally, of his
neutral principles. That was the basis that you made the selection.
Mr. SMITH. Well, that was a basis.
Senator SPECTER. Well, that was a philosophical basis.
Now you have Judge Bork coming inand let me move in the
few minutes I have left to the equal protection issueyou have
Judge Bork, haying written extensively over many years that equal
protection applies only to the core value of race. And then, more
recently, he has said that it applies as well to ethnic matters.
Now he has come before this committee, and he has said that he
would accept the Court's interpretation of equal protection in a
much broader context, to include women's rights, to include poor
people, to include illegitimates, to include aliens, and so forth.
Now, in that context, what again is the assurance, reliability,
predictability, that Judge Bork will carry out and apply the doc-
trine of the court in a context where it is a fairly sharp shift from
what he had said equal protection meant in terms of neutral prin-
ciples and the framers' intent?
Mr. SMITH. Well, I think I have to go back once again. You are
talking about the man. You are talking about his intellect, you are
talking about his heart, you are talking about how he looks overall
at these basic issues.
I really think that the attempt to sort of diagnose or blueprint in
specific terms, as perhaps you are doing here, may be a very diffi-
cult thing to do. I think what you have to do is find out whether or
not this candidate has a discriminatory bone in his body.
Senator SPECTER. HOW do you do thatx ray him?
Mr. SMITH. Well, you look at his record; you use all of the crite-
ria that are available to you to find out. And it seems to me that
that is where the thrust of this inquiry ought to be. I do not think
that you can, nor do I think you should, try to pin him down and
ask him are you going to do this or are you going to do that when
you get on the Court. That is a futile endeavor.
1139
And I might sayI told you I had been involved in judicial selec-
tion for 20 years. I have gone through this time and time and time
againwhat are the criteria used; how can you be sureall of this.
The net of it is you go after the individual, basically what kind of a
person he is, what is his intellect, does he have feeling, compassion,
does he have anything that would indicate what I would call a dis-
criminatory bone in his body. Those are the things.
I have had, for example, a candidate for a very important judge-
ship in California sit across from my desk and tell me that he was
in favor of capital punishment, in those words. The first thing that
happened when he got on the court was to vote against it. Not only
did he vote against it; he wrote the opinion.
Now, trying to get somebody to say this is the way I feel, in my
opinion, and I say it with a great deal of experience, is a futile
effort.
Senator SPECTER. Well, I agree that there is no certainty. But it
is true, isn't it, that when the administration makes a selection of
a person for the Supreme Court that they are looking for judicial
restraint; that it is an attractive principle; that Judge Bork is a
man who believes in original intent. What effect does it have on
your thinking? Would the President have nominated Judge Bork
had he believed that Judge Bork did not believe in original intent,
as Judge Bork originally said that the equal protection clause was
limited to race?
There was an effort at the outset with the administration to find
someone with judicial restraint, original intent, neutral principles.
Mr. SMITH. Well, I do not think there is any question about that.
Those terms are so difficult to define. Judicial restraint is sort of
an encapsulated term one uses to describe a certain philosophy.
How you apply it in a given case, I do not know.
No, I think you are absolutely right. I think that was what the
President wanted. And I think
Senator SPECTER. Would he be disappointed to know that Judge
Bork has moved from original intent to say that equal protection
applies much more broadly than the framers said?
Mr. SMITH. I do not know. I do not know. It depends on how that
ultimately is applied in given cases, I suppose.
Senator SPECTER. My time is almost up; final question.
The CHAIRMAN. YOU have two and one-half minutes.
Senator SPECTER. Next question. What basis, if any, do you have
for the observation you made a moment ago that the conservatives
are likely to be disappointed in Judge Bork?
Mr. SMITH. Oh, that is strictly visceral.
Senator SPECTER. Tell us about it.
Mr. SMITH. Well, how do you explain visceral? I do not know. I
just think that Judge Bork, probably more so than any judicial can-
didate that I know ofinsofar as you can ever measure these
thingsis more dedicated to applying neutral principles than, as I
say, than anybody else that I know.
If he does that, which he will, in my opinion, the result that
comes from that analysis could very well disappoint conservatives
as much as or more than liberals in terms of how he comes out,
because he is not going to come out just because this is the conserv-
ative answer. He is going to come out where his analysis leads.
1140
And if it is conservative, so be it; if it is liberal, so be it, or if it is
something in between, so be it. That is the way he is going to come
out.
Now, that means, in my opinion, that he is going to be far less
predictable than what has been referred to here so many times as
a right-wing idealogue. That in essence is what I am saying, but it
is probably more visceral than explainable.
Senator SPECTER. SO you think, as Attorney General Levi said,
that the issue of Roe v. Wade is pretty much up in the air, even as
to how Judge Bork may come down on it if confirmed?
Mr. SMITH. Well, that is a different question, that is a different
question. Roe v. Wade was wrongly decided in my opinion; and
wrongly decided in Judge Bork's opinion; wrongly decided in Attor-
ney General Levi's opinion
Senator SPECTER. But Attorney General Levi thought that a good
lawyer like Judge Bork might find another rationale to uphold it.
Mr. SMITH. Well, quite possible. But what I am saying is when
you ask that question, you are injecting another element, namely,
the stare decisis, the value of precedent. And I do not know; if I
were going on that Court, and the issue came up again, I think I
would vote to overrule it, but I am not at all sure Judge Bork
would.
Senator SPECTER. That may pose a problem on your confirmation,
Attorney General Smith.
Mr. SMITH. Yes. Thank you.
Senator SPECTER. Thank you very much, Mr. Attorney General.
Senator HUMPHREY. General Smith, I was pleased to see a sense
of indignation arise from your ordinarily well-composed presence.
Mr. SMITH. That is just a cover.
Senator HUMPHREY. That indignation is well-justified. One of the
Senators, I have forgotten now which, talked about the concern
that women have. My gosh, it is hardly any wonder when you look
at the fear-mongering that is being resorted to by the opponents.
I have seen full-page ads in major newspapersGod knows how
much they cost. One of them, I recall, the headline was, "What
Women have to Fear from Robert Bork" and then it was followed
by a whole bunch of demagoguery.
Mr. SMITH. Absolutely outrageous, absolutely outrageous.
Senator HUMPHREY. Followed by a whole bunch of demagoguery.
And that is typical of what a number of organizations are doing.
They are resorting to demagoguery, distortion, and assassination of
this nominee. I think it is outrageousand not only to defeat it
but, as Senator Grassley pointed out, to fill the coffers of their
treasury.
Now, something else that disturbs me is the persistent effort of
Judge Bork's detractors to dismiss as irrelevant 4 or 5 years as So-
licitor Generalhis record, that is, of 4 or 5 years as Solicitor Gen-
eraland 5V2 years on the second most important court in this
country. And our friend from Vermont tried it just a moment
agoSenator Leahy, if you want to listen to this.
Once again, we had an effort to dismiss the extraordinarily im-
portant and impressive fact that Robert Bork has written 106 opin-
1141
ions, Senator Leahy, only one of which, on which, the Supreme
Court granted cert, in other words, agreed to review. Out of 106
opinions which he wrote, the Court agreed to review only one and
upheld him on that one. More in just a moment.
But what does it tell you when the lawyers in 105 of 106 cases
decided that the decision was so sound it was not worth appealing,
or conversely, the Court refused to grant cert? What does that tell
you about the soundness of this man's reasoning?
Mr. SMITH. Well, it certainly seems to me you can draw some
very good conclusions from that.
Senator HUMPHREY. Of course. If the lawyers decide not to chal-
lenge, they know they are beaten. If the Supreme Court will not
grant cert, it is because those seeking the writ do not have a good
case.
Mr. SMITH. It really is an extraordinary record.
Senator HUMPHREY. Just that clearcut. And in 105 of 106 deci-
sions which he wrote, either the lawyers did not appeal because
they knew they had a lousy case, or the Court said they had a
lousy case, and would not accept itexcept in one case, where the
Supreme Court upheld Judge Bork.
Mr. SMITH. Right.
Senator HUMPHREY. NOW, that is relevant. And to dismiss that as
irrelevant is irresponsible and, in my opinion, far worse than irre-
sponsible.
In addition, on a broader scale, Judge Bork has participated in,
as opposed to having written himself, joined in, 432 cases of which
40 have been appealed to the Supreme Court. Okay, that is 40. So
that leaves 392 in which either the lawyers decided not to appeal
because Bork's decision in which he joined was so sound, or the
Court said, "We will not consider the case"392 out of 432.
Of the 40 successfullythis gets pretty confusing, I must admit; I
might have even confused myself at this pointbut in any event,
432 opinions he has joined in. There have been 40 attempts to
appeal to the Supreme Court. The Court said no in 35. Three cases,
it has accepted, given certgranted certI am not a lawyer, so I
have a hard time with these terms35, it said no cert; 5, it said
yes; 3 are pending, and the 2 that have been disposed of, Robert
Bork was affirmed on those two.
In addition to that, when he was on the minority side, in about
20 cases, 6 have been successfully appealed, that is to say, the Su-
preme Court has agreed to review 6. And in every one of those 6,
even though Robert Bork was on the minority side of the opinion,
the Supreme Court upheld it, 100 percent, 6 out of 6.
Mr. SMITH. That is quite a record.
Senator HUMPHREY. NOW, if I did not explain that with perfect
clarity, I apologizebecause I am tiredand I am tired of the dem-
agoguery, I am tired of the distortion. I am tired of the long hours,
too, I will tell you that.
Now let me go on to something Senator Metzenbaum saidand I
am sorry he has not been here, because he has got wax in his ears,
too. He will not listen to the facts.
He suggested you check with the flight attendantsI think he
said "stewardesses"; that belies a certain sexism, if you ask meI
suggest he check with the flight attendants when you go home,
1142
particularly if it is Northwest Airlines, because I remind Senator
Metzenbaum, if it is worth reminding anybody of the factsand I
have real doubts about whether it is worth reminding some of
these characters of the factsthat Robert Borkdid he write it or
did he join in ithe wrote an opinion in which he found that
Northwest Airlines had discriminated against female flight attend-
ants. The result of that finding was that these female flight attend-
ants got back pay with interest.
So you tell that to the flight attendants, and you see what they
think of Robert Bork and his defense of the rights of each citizen
before the law.
The CHAIRMAN. YOU are going to have an interesting flight, Gen-
eral. [Laughter.]
Senator HUMPHREY. Well, how do you explain this extraordinary
discrepancy, this inconsistency where, on the one hand, this august
body, this committee, the full Senate, unanimously confirmed
Robert Bork to the second most important court in the country 5
years ago, when all of these writings, which have been almost the
exclusive focus of criticism, were fully available to Senators, and
today, when they claim that they have a case that these writings
disqualify Robert Bork from serving on the Supreme Court?
What do you think of that discrepancy, that inconsistency? Do
you see anything inconsistent there?
Mr. SMITH. Well, I will have to say Iperhaps I should not be
surprised, but I am surprisedat the way this whole situation has
developed, because before his nomination came up, and certainly
during all the time when I was in office, and since, whenever any
group of names were put together with respect to potential Su-
preme Court nominees, Judge Bork's name was always on that
listand, I might add, subscribed to in effect by both sides of the
aisle. Therefore, it was almost a given that he was on any likely
list, and it certainly developed into quite a surprise that when the
nomination actually comes up, that we run into this kind of a
maelstrom.
Senator HUMPHREY. Mr. Chairman, I thank General Smith.
General, I appreciate your time and the effortI beg your
pardon. I am sorry.
Senator Simpson.
Senator SIMPSON. Mr. Chairman, I will submit my questions in
writing.
I just want to greet William French Smith, a man I came to
know well in my work here. It is good to see you, sir, as always, my
old sidekick on immigration reform and other odds and ends.
Mr. SMITH. Thank you.
Senator SIMPSON. It is pleasing to have you here. I was watching
your testimony, and then came over to participate in the rest of
the evening's activities, if that is where we are going, I will stick
around.
But I just want to say you have seen a few things. And I remem-
ber that you came to this nation's capitol as a lawyer's lawyer.
That is the highest tribute I can pay as a fellow lawyer. And I
watched you do your work, and I watched you take some cheap
shots. You remember some of those, don't you?
1143
Mr. SMITH. Yes, indeed.
Senator SIMPSON. YOU have been on the receiving end of those.
Mr. SMITH. Standard fare here in this city.
Senator SIMPSON. Standard fare; kind of a heavy diet. You do not
get fat on it, but it goes with the territory. Even the counsel at the
Iran-Contra hearings said, "You know, I am from New York, and I
thought I was a pretty tough cookie, but I have never seen any-
thing like this place. This is an eat them up and spit them out
place."
I said, "Yes, it is." But we do take care of every known living
thing other than human beings, who are under the gun in this
town. We have organizations to protect all other living things,
except human beings when they are on the course, when we are on
the track of them.
But you have been on the receiving end, and you have seen a few
of these, and you know what distortion is. And being the civil man
you are, I saw you take a lot of abuse, and it was tough for you; I
remember that, and how you handled that, you and your wife
Jean, both, with great grace.
And so my questionand it is only onein all your time here, in
the time you have been in it and the things we have seen, through
two administrationsgo backhave you ever really seen one that
had more distortion in it than this one? Let me ask you that.
Mr. SMITH. I do not think I can think of a close second. And it
reached the point where one wonders whether anyone is willing to
subject himself to this kind of a process in order to get even that
high a position.
The thing that is distressing to me is that it really is not just
propaganda. Propaganda, you can understand. That is part of the
way we do things. But in this case, I have never seen such misrep-
resentation, such distortion, and such outright lying. I mean, there
are people in very important positions in this government who are
lying to the American public. Now, that is hard to take.
And the problem is, I say "lying" because they know what they
say is not trueand not just people in this government, but people
on law school campuses and elsewhere who presumably are sup-
posedly responsible people.
I have never seen anything like it. I hope I never see anything
like it again, and I find it reallywell, "inexcusable" is a very soft
term to use for it.
Senator SIMPSON. Well, that is the phrase I used the other day,
and I do not believe I have used it in 9 years here. I used the word
"lie" and I really meant what I said. And I said
Mr. SMITH. I used it a little earlier here, myself, and I meant
what I said.
Senator SIMPSON. Yes. And I visited with executive directors of
some of these various groups who are in opposition, and it is very
interesting to watch them, and they say, oh, we were just going
through the record carefullynon-unanimous decisions, odds and
ends, and come up with somebody is doing the ads, but no one
really owns up. Well, they say, there is the organization; they have
signed it at the bottom. And I say, yes, but who are they? Who are
they? Is it just a mimeograph machine and a phone bank? Who do
they represent? Who funds them?
1144
And so, if the intent is to say that the American people are
frightened, or that flight attendants are frightenedI would be
frightened, too, if I read that crap. And that is where we are right
now on this one; that somehow, this man is a racist because of a
poll tax case which did not have anything to do with racisim; that
he would sterilize all of our fellow human beings in some quirk, or
for some really bizarre reason; that he fired Archibald Cox; that he
discriminates against blacks and women; that he is anti-consumer,
antieverything; and everything he has done in public life, except
the article in 1971 of the Indiana Law Review, which was just a
ranging series of proposals, and how a guy can be on the U.S. Cir-
cuit Court of Appeals, and do what Senator Grassley has portrayed,
Senator Humphrey has portrayedand the next witnesses will be
from the American Bar, and we will certainly want to try to find
out what he did that was so bad between the years 1982 and 1987,
when none of his opinions have been overturnedand if that is not
blatant politics, I do not know what it isyou can call it anything
you wantwe will find that out.
But no wonder they are frightened. And I personally have never
seen such a distortion in all my time here, in my nine years, an
organized campaign of distortion to frighten the American public.
And it has worked, because they came out of the box first.
But the mail to my office, not only from my State, but through
the United States, is beginning to turn rapidly, like, wait a minute,
this cannot be. There is no one like this who has been endorsed by
or spoken on behalf of by Justice Burger, Justice Stevens, and now
Justice White, who have all said this would be a remarkable addi-
tion to the Court.
And to really believe that this lumbering, Neanderthal, hideous,
bestial man is somehow going to go to the Supreme Court and
wrench four of those remarkable eight people off their noodle and
make them all go his way and just destroy Americanow, that,
they really lost their lunch on that one, they lost their marbles.
It is a tedious thing to watch. I get dispassionate, as does Senator
Humphrey. Maybe the other side went that far, too, in the begin-
ning; maybe they did. Maybe they polarized themselves. But we de-
serve better in the United States than this, with a man who has
never been challenged in these other areas, and so you use emo-
tion, fear, guilt and racisim to whip him down. He will not be
whipped down. He will prevail, and we will get him.
That is all I have to say, Mr. Chairman.
Thank you for being here.
Mr. SMITH. Well, Senator Simpson, thank you. And I do not
think I can remember an occasion in the past when I was back
here that I ever disagreed with you, and what you have just said
falls into the same category. And as a matter of fact, if you want to
be the fourth candidate for President of the United States on this
Committee, I will be glad to support you.
The CHAIRMAN. Me, too.
Senator SIMPSON. There are only three electoral votes in Wyo-
ming. It would be a lost cause.
The CHAIRMAN. Senator Thurmond?
Senator THURMOND. Mr. Attorney General, I just want to compli-
ment you on your great work here as Attorney General. I have
1145
been in the Senate now for 33 years, and I do not think we have
had a more able lawyer or a finer man to serve in that position,
and we are proud of you.
Mr. SMITH. Thank you very much, Mr. Chairman.
The CHAIRMAN. General, enjoy your flight.
Mr. SMITH. Thank you very much.
The CHAIRMAN. Our next witness is former Attorney General
Katzenbach. And while he is coming to this Chair, to his seat, I
want my colleagues to know that I plan on sitting straight through.
I understand others may have to take a break on occasion to meet
responsibilities. We are going to finish with the witness list to-
night.
I ask my colleagues to limit their questions to ten minutes, and I
will not be offended if they do not take 10 minutes.
We have Attorneys General Rogers and Saxbee, still waiting.
General, welcome. Thank you for waiting. Thank you for your
forbearance.
Please proceed.
TESTIMONY OF HON. NICHOLAS KATZENBACH
Mr. KATZENBACH. Thank you, Mr. Chairman.
I would like to make a very brief statement, which will perhaps
focus some of your attention on where I am coming from.
I signed the statement by the Lawyers' Committee on Civil
Rights which opposed the appointment of Judge Bork to the Su-
preme Court. I am not here today on behalf of the Lawyers' Com-
mittee. Other witnesses will perform that role, although I would be
perfectly happy to defend that position.
I just want to make it clear that what I am saying now, I am
saying simply on my own behalf.
I am opposed to the appointment of Judge Bork. But I do not
come to that decision easily, and I do not come to that decision
happily.
It is not easy for me, and I suspect it is not easy for the members
of this committee and for the Senate. Judge Bork's extraordinary
performance as a witness last week does not make the decision any
easier. He has exhibited erudition, integrity, humor, patience.
He also modified and moderated views which I confess are large-
ly the basis for my opposition to his appointment to the Supreme
Court. So I think it is a tough decision. That is where I am coming
from. It is also an important one.
There is relatively little that I can add to the substantive argu-
ments that have been so eloquently made here. Were I in your po-
sition, the central question that I would be asking myself would be
this. Is Judge Bork a man of judgmentnot intellect, not reason-
ing, not lawyering skills, not ideology, not philosophysimply,
judgment. Is he a wise person? Is he a person you would seek out if
you had a difficult problem, for advice? Does he come through to
you as the kind of person who is sensitive to human problem, to
racial problems, to the role of political institutions, in resolving
them?
I have seen some evidence that makes me skeptical. His 1963 ar-
ticle in The New Republic on the Civil Rights Act of 1964 is one
example, and I know you will understand why that is one that I
remember very well. It was then, and is now, absolutely inconceiv-
able 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 demostrate?
I realize that Judge Bork has done at least a partial mea culpa
with respect to that articlenot good enough for me, at least. He
said that he was on the wrong trackI think I am quoting him
correctlythat the Act worked out a lot better than he expected it
(1146)
1147
to do so. I do not think I would accept that kind of apology for a
judgment so wrong-headed, so totally insensitive to the whole world
around him in 1963.
Not even youth can serve as an excuse; he was of an age with
Attorney General Kennedy.
Judge Bork has an intellectual and philosophical bent which, in
some contexts, is admirable. He is learned in the profession, far
more learned than I, perhaps even more learned than some mem-
bers of this committee.
My questiondoes that very learning, does that very philosophi-
cal bent, tend to obscure and obfuscate common sense and sound
judgment?
If it has led him to conclusions that many of us would question,
does it bother him, or does he simply plunge right ahead?
Judge Bork and his supporters defend his views in part as the
advocacy of a scholar for a particular viewpoint. That gives me dif-
ficulty. The scholars I know advocate positions because they believe
in them. They do not do so simply to be provocative. Unlike prac-
ticing lawyers, whose conclusions come necessarily from their cli-
ents, and unlike lower court judges, who take the law from the Su-
preme Court and the legislature, scholars, like Supreme Court Jus-
tices themselves, can and should advocate positions that they be-
lieve in, arrive at objectively as possible.
Surely those writings stated Judge Bork's then best judgment
about the Constitution and how it should be interpreted. Some of
the views were expressed as tentative, although he adheres to
them. But my point is, he did not write them as exercises in futili-
ty.
In his testimony before this committee, Judge Bork emphasized
that a judge, even a Supreme Court Justice, must take the law as
he finds it, must build on past wisdom, must not disappoint the ex-
pectations of society. Those statements did not sound to me like the
professor who called these precedents unconstitutional and a lot of
other very, very strong words.
To a considerable degree, it seems to me, Judge Bork simply su-
perimposes his newly-found truths on the older ones. His views on
original intent and the restrained policy role of judges continue,
albeit somewhat modified by a late-coming concern about prece-
dent.
So frankly, I do not know where he stands. But that is not really
my point. Shouldn't we be concerned about the judgment that a
Justice can ride several unruly horses at the same time? Isn't that
a matter of concern?
I would also ask myself just how far Judge Bork goes in espous-
ing judicial restraint. I think judicial restraint, like judicial activ-
ism, is often more in the eyes of the beholder than the actor. Most
of us mistake, hesitatehesitateto criticize results we think wise,
simply on the grounds of judicial activism. And all of us have criti-
cized decisions we disapproved of as going too far. And of course,
some Justices have historically had broader views of the Court's
role than others. But I believe all Justices believe that role is limit-
ed and restrained, and of course, it is.
We also have to be conscious of the fact that in our constitution-
al system, the Supreme Court was given an ultimate political role
1148
in guaranteeing people various freedomsfreedoms from govern-
ment itself. And protecting those freedoms from executive and leg-
islative abuse, and, though more rarely, from executive and legisla-
tive inaction, is an essential and important role of the Court.
I am not sure that Judge Bork feels very comfortable with that
role. His views, unleavened by the recent testimony, have been
critical of many decisions. But the point I wish to emphasize is that
his writings almost invariably seek some kind of certainty, some
philosophical purity. He searches for neutral principles, which re-
flects to me a discomfort with the policy judgments the Supreme
Court has always been called upon to make; yet his unqualified
past views would have had radical results quite inconsistent, I
would think, with judicial restraint. And it is only his acceptance
of precedent and some of those decisions which he has criticized
which would support judicial restraint in the present context.
Let me just add a word, because it has come up here about Judge
Bork's performance as a judge and as Solicitor General. In my
viewand I have not read all of his decisionshe has performed
very well as a judge. Accepting the precedent that he testified in
his confirmation hearings would indeed control a judge of a lower
court.
In hearings earlier, when he was confirmed as Solicitor General,
he testified that he would present as Solicitor General the views of
the administration, not his own. That bothers me. My experience
with Solicitors General, Archibald Cox and Thurgood Marshall,
was that they did not make that distinction, and that they believed
that the administration's constitutional views were made almost
exclusively in their officeand indeed, they were.
Neither of those gentlemen, in my judgment, would have pre-
sented a view of the Constitution that he could not personally and
professionally endorse.
I raise that question only because I think Judge Bork as Solicitor
General took positions on behalf of the administration on most
issues quite consistent with those that I would espouse, and indeed
those of the Lawyers' Committee on Civil Rights.
And the problem I have is that I now do not know, as a result of
his statements, whose views they were. They were the administra-
tion's views. Did he, or did he not formulate those views, and were
they his views, unconstrained by the political considerations of the
administration? I do not know.
So let me conclude by saying simply this. I do respect Judge Bork
enormously, and I want that made clear. No man who described
U.S. v. IBM as the Antitrust Division's Vietnam can be all bad.
You have a difficult and an important decision to make. I oppose
Judge Bork's confirmation because, while I believe that a negative
vote mayand I emphasize "may"do him a personal injustice,
confirmation mayand again, I emphasize "may"result in far
greater injustice to many citizens, particularly minorities.
Senator Thurmond?
Senator THURMOND. Mr. Attorney General, I am glad to see you
again. I have not seen you in a number of years.
1149
Mr. KATZENBACH. Has it been an awfully long time? It has, has it
not, Senator Thurmond?
Senator THURMOND. I remember when you were Deputy Attor-
ney General
Mr. KATZENBACH. I get older and you do not.
Senator THURMOND. I remember when you were Deputy Attor-
ney General and Attorney General. It was back then.
Mr. KATZENBACH. Thank you, Senator.
Senator THURMOND. YOU are opposed to Judge Bork, are you not?
Mr. KATZENBACH. Yes, I am.
Senator THURMOND. IS there any question I could ask you that
would cause you to change your mind?
Mr. KATZENBACH. I suppose it would depend on my answer, but I
am persuadable. I am persuadable, Senator, and it is not really a
question, but if there is something thatthere are people, Senator,
that I respect enormously, Ed Levy, for example.
Senator THURMOND. YOU have definitely made up your mind?
Mr. KATZENBACH. Sir?
Senator THURMOND. I say you have definitely made up your
mind to oppose him? Is there anything we can say to change your
mind?
Mr. KATZENBACH. I cannot answer that question, sir. I hope my
mind is not such a closed mind that I cannot be persuaded on most
issues, and I would certainly think this was one of them. Surely, I
could be persuaded.
Senator THURMOND. I doubt if I could change your mind. I do not
think I have any questions. Thank you very much. [Laughter.]
The CHAIRMAN. He gets right to the point, does he not?
Senator Leahy?
Senator LEAHY. Thank you. I will be brief. I might say, Mr.
Chairman, the extraordinary nature of these hearings still come
back to me. One, Judge Bork answering questions at far greater
length than any time since in the thirties when we started ques-
tioning justices or justice nominees, at enormous length, on and on,
whether repetitious or not. I was most impressed by that. I think
everybody was.
I am impressed by people here. Mr. Attorney General, you would
not remember this, but when I was a law student at Georgetown
Law School and you were Deputy Attorney General, you were good
enough to come and talk with some of us or have some of us in
your office and talk with us, and even took the time to chat with a
couple like myself afterward.
And to see former Secretary of State William Rogers in the audi-
ence, former Attorney General Saxbe, Attorney General Levy here,
it stresses the importance of these hearings.
There have been a lot of statistics that have been bandied about
on Judge Bork's record on the court of appeals, the one majority
opinion that has gone up on cert to the Supreme Court, but are
those statistics anywhere near as important for somebody who is
being nominated for the U.S. Supreme Court, that is anywhere
near as important as the things he has written consistently over 20
years, the things he has said here under oath, which is more im-
portant, in your opinion?
1150
Mr. KATZENBACH. I would think the latter would be clearly so.
Judge Bork is a very competent lawyer. He can write a good judi-
cial opinion and he can write opinions not likely to be reversed.
Senator LEAHY. Thank you very much.
The CHAIRMAN. The Senator from Utah.
Senator HATCH. Welcome, Nick. It is nice to have you here.
Senator HATCH. It is nice to listen to you. I will say that you are
a signatory to the report on Judge Bork's nomination prepared by
the Lawyers Committee on Civil Rights. I have read that report
and that report to me is marginally a little better or more balanced
than other criticisms of Judge Bork's record. Some of them that
have been filed have been just terrible. Still, that report fails to
consider his record as Solicitor General, for instance 17 out of 19
briefs favoring minorities; or his record on the circuit court. All but
two of his cases, civil rights cases, he was for the minority and on
the two where he was not, the Court sustained his position in both
of those cases.
And the report by the Lawyers Committee on Civil Rights fo-
cused on his speculative academic writings which, of course, we
have had a lot of fuss about, not his record in public service, which
I think is pretty important. That is not my main point, though, at
this time.
The report itself objects to Judge Bork's criticism of the Oregon
v. Mitchell case which, of course, is the Court's reaffirmation of
congressional power to change the Constitution by statute relative
in this particular case to literacy tests.
Judge Bork's criticism of that case was based on his reluctance to
allow Congress to take over the Court's role defining the Constitu-
tion by a simple majority vote and, of course, using the case named
after you to be able to do so.
As I recall, you signed the letter, along with a number of other
former Attorneys General, I think five AGs in this case, Richard-
son, Brownell, Saxbe, Clark and Civiletti; with a similar position to
his on the human rights bill that was brought forward here, a bill
that would have used the Katzenbach doctrine to be able to over-
rule a Supreme Court case by a simple majority vote of the Con-
gress. Is that correct?
Mr. KATZENBACH. I do not believe so, Senator.
Senator HATCH. I think it is correct, that what happened was
that
Mr. KATZENBACH. If I signed it, I signed it. I just do not have any
recollection we put it that way.
Senator HATCH. Well, you did sign it. The point I am making is
thatyes, I think you will find that you did sign it, at least that is
what my recollection is, having sat through that particular prob-
lem, and I was on your side on that. As much as I have been a pro-
life Senator, I still was on your side. I do not believe you should
change a Supreme Court decision, a landmark case at that, by a
simple majority vote in both Houses of Congress, even though I
might disagree with that particular case.
So, what I am pointing out is that you signed that letter, and I
believe you did, the only principle that Judge Bork addressed in
the Oregon v. Mitchell case was precisely that principle. It really
1151
was not a fight for literacy tests or in any way against civil rights,
and so that is why I bring that up. That letter was solicited by
Larry Tribe of Harvard.
If I have articulated this correctly, than his particular position in
Oregon y. Mitchell would not have been all that different from
your position in the human life bill.
So, I might just in conclusion state this, that I would note that
Judge Bork clearly applied his Oregon v. Mitchell reasoning neu-
trally. For instance, he refused to use the notion that you can over-
rule the Supreme Court decisions by simple majority rule, follow-
ing the Katzenbach doctrine with regard to an opportunity to
outlaw forced busing, which he may or may not agree with, and, of
course, he himself testified against the human life bill, as did the
various Attorneys General.
I just want to point that out to show that in our zeal toand I
am not blaming you for this, you did not prepare the document,
the reportthat in our zeal to defeat somebody like Judge Bork,
sometimes there is a lot of distortion in the process, and I think
General William French Smith's comments are more than ade-
quate here.
Mr. KATZENBACH. I hope that I have not indicated a zeal to
defeat Judge Bork.
Senator HATCH. NO, I don't think you have.
Mr. KATZENBACH. I am troubled by it because of some of his obvi-
ous qualifications.
Senator HATCH. Surely.
Mr. KATZENBACH. I have come to a conclusion on that. I might
also add simply as a footnote to that that the issue of voting in
Katzenbach v. Morgan was the one part of the civil rights bill that
I had serious doubts about.
Senator HATCH. I understand. Well, I appreciate the way you
have come here and I appreciate the way you have testified. You
have raised it sincerely from your point of view and I admire you
for that. I just want you to know that our friendship is intact and I
have a great deal of respect for you. I appreciate it.
Mr. KATZENBACH. Thank you. Senator.
The CHAIRMAN. Senator Heflin?
Senator HEFLIN. What year were you Attorney General?
Mr. KATZENBACH. What year, Senator?
Senator HEFLIN. Yes.
Mr. KATZENBACH. I became Acting Attorney General in October
of 1964 and was Attorney General until October I guess of 1966.
Senator HEFLIN. During that period of time, was any appoint-
ment made by the then President to the Supreme Court?
Mr. KATZENBACH. Yes, there was one before I became Deputy At-
torney General. There was one that I worked on, which was Byron
White, and I did not work on that simply to succeed him in his job,
which is what actually happened after he was put on the Supreme
Court.
Following that, there was the appointment of Arthur Goldberg
while I was still in the Justice Department, and the appoint of Abe
Fortas while I was in the Justice Department, and the appointment
after I left the Justice Department, I was talked to by the Presi-
dent on the appointment of Thurgood Marshall.
1152
Senator HEFLIN. And you have had a good deal of experience in
checking the backgrounds of potential members of the Supreme
Court?
Mr. KATZENBACH. Yes, sir, I think so.
Senator HEFLIN. YOU have had responsibilities in that connec-
tion?
Mr. KATZENBACH. Yes, I certainly did. I did on all four of the ap-
pointments that I described.
Senator HEFLIN. And you dealt with the American Bar Associa-
tion's committee that was working on those?
Mr. KATZENBACH. Hundreds of time, yes, sir.
Senator HEFLIN. Not only on the Supreme Court but on the court
of appeals and District courts?
Mr. KATZENBACH. Yes, Senator, I have.
Senator HEFLIN. Just from a point of curiosity, has the American
Bar Association evaluations of Supreme Court nominees changed
from the time that youwell, I reckon what I am directing at is
has it changed from a criteria of ideology? They say now that they
do not look at ideology in their evaluation.
Mr. KATZENBACH. NO, and I do not believe they did then and
Senator HEFLIN. They did not do it?
Mr. KATZENBACH [continuing]. To the best of my knowledge, they
do not today, but I cannot speak to that with the same knowledge.
Senator HEFLIN. I believe that is all.
Senator HEFLIN [presiding]. Now, I am Chairman. Boy, they are
getting down to the lower end of the ladder.
Simpson, I do not know whether I am going to recognize you.
[Laughter.]
Senator SIMPSON. Judge, you have always been most courteous.
Senator HEFLIN. I am delighted now to yield 1 minute to you.
Senator SIMPSON. Well, if you want to do that, I will never listen
to any Notai Hawkins stories again. I have heard all of those.
[Laughter.]
Well, busy people are waiting to testify. I had several questions
and I am going to limit them because I know General Rogers and
General Saxbe are there and we are going to finish.
It is good to see you, sir. I used to read about you when I was
practicing law in Cody, Wyoming, and you were a very extraordi-
nary Attorney General, and I say that in reality. You had courage
and guts to do what you had to do, even if I would not agree.
Mr. KATZENBACH. Thank you very much, Senator. I appreciate
that.
Senator SIMPSON. YOU said something and you said it with some
feeling. All of it was said with feeling, but you said something
about the fact of how anyone could be so totally unaware as to the
world around him in 1963.
Mr. KATZENBACH. Yes, sir.
Senator SIMPSON. YOU said that?
Senator SIMPSON. Then I do not see how you can overlook that in
the Senate there were people who felt exactly as he did, people like
William Fulbright, who voted against the civil rights bill, three sit-
ting members of the U.S. Senate who voted against the civil rights
1153
bill and brought up the same questions, nothing more, nothing less,
the vice presidential candidate of the United States of America on
the Democratic ticket, John Sparkman, all of those people and
many more embraced exactly the position of the nominee.
How do you possibly then equate their status in your judgment
of their lives? Are they lesser or more.
Mr. KATZENBACH. Many of those gentlemen, Senator, indeed all
of the ones that you have named, are people that I greatly admire.
They were acting at that time, I believed and I believe now, largely
for political reasons, because of their constituents at home, because
of the intense feeling at that time, and indeed many of them have
told me so.
Senator SIMPSON. Nevertheless, they voted while the nominee
wrote, so is there not someI do not see the distinction there,
if
Mr. KATZENBACH. Well, let me see if I can explain it a little more
clearly. They were Senators, they had constituents, those constitu-
ents were white, because they did not have very many black con-
stituents who were permitted to vote, those constituents were
against the public accommodations law and against the other pro-
visions of equality in that Act, and I think those Senators felt com-
pelled by their politics to vote as they did much more than by their
conscience. Professor Bork did not have that problem.
Senator SIMPSON. NO, but the others voted. They voted against
the civil rights bill in its totality, not just public accommodations,
which was part of the national debate and the only part that the
nominee spoke on, was the issue of owning your own shop or your
own store and did you not have a right to do this. That was the
issue of the day. The other things were pretty heavy in the civil
rights bill to the others that I think, you know, when you try to
isolate him from these other fine Americans on some sophistry of
election and pressure and so on, I do not think that is quite open
and candid.
Mr. KATZENBACH. I appreciate your disagreement. I do not think
that is sophistry and I think I am being open and candid, and I had
a hell of a lot to do with that law and I understood it.
Senator SIMPSON. Good. I know you did. I know you did. And you
said that Judge Bork had performed well as a judge. That was your
quote.
Mr. KATZENBACH. Yes, sir, I think he has.
Senator SIMPSON. And you are aware, too, that when he was So-
licitor General, he often submitted his own views time after time
under amicus briefs, and I thought you said that he did not do any-
thing but just follow the government line. I thought that is what
you said.
Mr. KATZENBACH. I said I hadno, perhaps I did not make that
clear, Senator.
Senator SIMPSON. HOW did that go?
Mr. KATZENBACH. What I attempted to say was that in his confir-
mation hearings he said that he would espouse in his briefs as So-
licitor General the views of the administration, act as a lawyer es-
pousing those views. I said that makes it difficult to know, whether
it is in his amicus briefs or in his briefs on appeal, whichever side
he is on on the appeal, to what extent the Solicitor General's briefs
1154
reflected his own views, rather than those of the Attorney General,
rather than those of the President, and so forth.
I am not trying to take anything away from those briefs. I
thought I indicated I thought they were good briefs. They were
good on civil rights. By and large, they were good on civil rights. I
do not mean to take that away. I just do not know how to weight it.
Senator SIMPSON. HOW what?
Mr. KATZENBACH. HOW to weigh it.
Senator SIMPSON. HOW to weigh it?
Mr. KATZENBACH. Yes.
Senator SIMPSON. Well, he testified before us that he did those
things on his own. He said certainly he had the official position of
Solicitor General but that he often filed these briefs on his own,
and no one has challenged his record, oddly enough, as a member
of the Circuit Court, the District of Columbia Court of Appeals,
how odd that it seems not to be commented upon by his detractors.
Not one person I have heard yet has said that he was out of the
mainstream with his decisionsthey are all printedthat the So-
licitor General's briefs were off the wall. None of that has come up
at all and does not.
Mr. KATZENBACH. I took up both, Senator.
Senator SIMPSON. YOU took what?
Mr. KATZENBACH. I took up both of those issues. I tried to deal
with it openly and candidly.
Senator SIMPSON. NOW, I wanted to ask you, you have former
Chief Justice Burger, Justice John Paul Stevens, and now the ap-
pointee of your own President, Justice Byron White, according to a
transcript of John McLaughlin's "One on One," on page 7, Septem-
ber 17, 1987, saying that this man should be confirmed. Do you not
find that rather impressive, or do you think that these individuals
would endorse a person of erratic temperament, as you describe?
Mr. KATZENBACH. I think, Senator, that there are many people
whose views I greatly respect who have endorsed Judge Bork. I do
not on this particular issue happen to agree with their judgment,
although I agreeif they saw it as I saw it, then they probably
would not do it. They see it differently, they see him differently
than I see him, and for that reason they support him and that is
one of the reasons that I find it a difficult decision.
Senator SIMPSON. YOU indicated, though, that you are persuad-
able. I had hoped you had looked at his civil rights decisions which
were included in the record this morning and some of the remarka-
ble things he did for minorities, women, blacks, what he did in his
own law firm to help the Jewish associate who was excluded, some
of those things I would hope that a persuadable man, you might
look at, and I know you will and I appreciate it.
I have no further questions.
Senator Grassley?
Senator GRASSLEY. Mr. Katzenbach, one of the things that came
up when Judge Bork was before us was the issue of whether or not
the courts ought to step in and iron out a decision between the
President and the Congress, and I want to ask you to take yourself
back to the period of time when you were Under Secretary of State
and you testified before the Committee on Foreign Relations on
1155
something called S.Res. 151 and, as I understand it, that resolution
was really a predecessor of the current War Powers Resolution.
Generally, it would have forbidden any decision to use or promise
the use of armed forces of the United States to a foreign state with-
out some kind of affirmative act by Congress, specifically intended
to give rise to such a commitment. Do you recall that testimony?
Mr. KATZENBACH. I do, at least generally.
Senator GRASSLEY. Okay. The reason that I ask this is that I was
struck by the similarities between your view of the resolution and
Judge Bork's view on the War Powers Act. And as I understand
your position, you argued that S. Res. 151 should not be enacted for
two reasons: First, because our history informally counsels against
treating disputes between the Congress and the President, such as
on the subject of their respective powers in foreign affairs, as legal
questions; and, second, because Senate Resolution 151 created a
real risk that Congress might intrude into the President's preroga-
tives to make tactical decisions, as Chief Executive and Command-
er in Chief. Specifically, you stated "when Congress has authorized
the use of the armed forces of the United States, I do not believe
that the Congress can then proceed to tell the President when he
shall bomb, when he shall not bomb, where he shall deploy his
troops and where he shall not"and that is from pages 85-89 of
your testimony.
Now, I find that view strikingly similar to Judge Bork's view on
the subject: that courts should not resolve such disputes and that
Congress cannot take over the actual decisions regarding how hos-
tilities are to be conducted. I hope that you are familiar with Judge
Bork's views. But, even if you are not familiar with them, and as-
suming that I described them accurately, do you agree that the
similarity is striking?
Mr. KATZENBACH. Yes, sir, I do.
Senator GRASSLEY. Okay. Do you still adhere to your 1967 views
on the subject?
Mr. KATZENBACH. Yes, I do.
Senator GRASSLEY. Well, presumably then, to the extent that
Judge Bork agrees with you on this, you do not believe that he
should be disqualified from serving as Associate Justice, at least on
those grounds?
Mr. KATZENBACH. Not unless I am also.
Senator GRASSLEY. Thank you.
Mr. Chairman, that is my only question.
The CHAIRMAN. Senator Specter?
Attorney General Katzenbach, did you know Judge Bork from
his work on the faculty of Yale Law School?
Mr. KATZENBACH. NO, I did not.
Senator SPECTER. That was after
Mr. KATZENBACH. I may have met him on occasion, but he is not
somebody that I really know.
Senator SPECTER. DO you base your opposition to Judge Bork at
all on his legal writings in the Indiana Law Review?
Mr. KATZENBACH. Almost entirely, yes, sir.
Senator SPECTER. What judgment do you formulate from his shift
in position where he says that he is prepared to accept the doctrine
1156
of clear and present danger for the first amendment and that he
accepts the application of the Equal Protection Clause on broader
grounds than he wrote about in 1971 and that he had spoken about
more recently?
Mr. KATZENBACH. I get very troubled by that, Senator. What
troubles me about that is that in my judgment, sir, this committee
should not be trying to get commitments from potential Supreme
Court Justices as to what they will do or what they will not do in
particular situations. I think that has occurred, or very nearly oc-
curred, too much occurred in the case of Judge Bork, and it has
occurred because, unhappily, of the things that he testified and the
moderating of the position that he was engaged in before this Com-
mittee, work done before that, work done in a way where they
could be cited as representing a genuine change of position.
I said in my statement and I am really troubled by it, I do not
know. He says "I continue to believe what I believed in the past,
but I will accept this precedent," and when I try to put that mix
together, I do not know what it is. I do not know what he really
believes.
Senator SPECTER. But, Attorney General Katzenbach, how about
the issue of law professors writing Law Review articles to advance
ideas? He said the ideas were tentative and speculative. You have
had some experience with the law journals yourself
Senator SPECTER [continuing]. As Editor in Chief a few years ago
of the Yale Law Journal, quite a few, but that is the style of the
law journal.
Mr. KATZENBACH. I do not think so, Senator. I disagree very
strongly with that. I do not believe that is scholarly writing. Occa-
sionally, there is a speculative case that is put out and it is put out
as speculative, but it is not put out with the languagethat is un-
usual language for a scholar, it really is, and if it is put out as spec-
ulative, you wait to see what other people say and write about it
and then you write about it again, changing your views or modify-
ing your views. That has not occurred. He has modified his views
slightly. He modified his views before the testimony to a degree,
certainly on free speech.
Senator SPECTER. Well, he has on free speech and he has on
equal protection, but
Mr. KATZENBACH. Equal protection, only very slightly before his
testimony before the committee.
Senator SPECTER. Well, before the committee very substantially.
Mr. KATZENBACH. Before the committee, very substantially, but
where did that revelation come from?
Senator SPECTER. Well, it comes from a position of being a Su-
preme Court nominee, and that is a significant shift, beyond any
question. But what reason do we have to doubt him, and if you
have a reason, I would be interested to know it.
Mr. KATZENBACH. I do not for 1 minute, Senator, want to doubt
his honesty or his integrity. He has certainly got those and he has
got those in spades, no question about that.
Again, I do not know what it means. He said he accepts that
now, even though he does not accept the basis of it. Now, you get
up on the Supreme Court and you have got eight colleagues there
1157
and you are discussing things with them, should he feel committed
to that view? Suppose he changes it? He has changed his views in
the past. Should he feel committed by that? I would not and I do
not think you want him to feel committed by that.
You want the free and honest ideas of the man that you confirm
as appointed to the Supreme Court. You do not want to confirm
himI do not think you want to confirm him because he is com-
mitted to some particular line of cases or some particular law here.
You want the man on the Supreme Court, not this idea or that
idea.
Senator SPECTER. Well, did we go too far in asking him about ju-
dicial philosophy? If we are looking just to the man, the tradition
in the past has been that we did not ask questions about judicial
philosophy. When Justice O'Connor was before this committee, she
would not answer any questions. Judge Scalia, now Justice Scalia,
would answer none at all. Justice Rehnquist answered a few ques-
tions on the corporation doctrine, on Marbury v. Madison. Judge
Scalia would not even answer those questions. Did the committee
do Judge Bork wrong by pushing him on judicial philosophy?
Mr. KATZENBACH. I do not think the committee did wrong, but I
am not sure he should have answered the questions. I think if he
had not answered the questions, he would be in more serious diffi-
culty with the committee, but I do not mean by that for one
minute that he did not give honest answers. I want that just as
clear as I can make it. I think he is a man of integrity and he cer-
tainly gave the answers he believed at the time he gave them to be
honest.
Senator SPECTER. Well, Attorney General Katzenbach, I too am
troubled by the answers which he has given, which I have stated
for the record I have a question about, what I would call our ability
to rely or predictability when he accepts a legal doctrine but dis-
agrees with the philosophy. But at the same time my thought has
been that professors do advance ideas and it is hard for professors
to get their ideas across without being emphatic. It is hyperbo-
le
Mr. KATZENBACH. I do not believe that. That is not my experi-
ence, let me put it that way. It may be your experience, but it has
not been mine, and I did teach for 8 years and I have taught as a
visiting professor at places for another four, and that is not my ex-
perience.
Senator SPECTER. Well, I do believe that professors have substan-
tial latitude.
One or two questions on the civil rights issue. I understand the
point you are making about his position in 1963, and I find it trou-
bling, too, but the question is a question of growth and a question
of change. As I recollect it, back in June of 1963, you were Deputy
Attorney General and confronted Governor Wallace
Senator SPECTER [continuing]. In a rather dramatic confronta-
tion.
Mr. KATZENBACH. It was his idea, not mine.
Senator SPECTER. Well, it took two to tango, and you were there
and I understand where you were coming from on that. When you
talked about the Senators who voted against the Civil Rights Act,
1158
Senator Simpson asked those questions, we have had Senators vote
to deny the Supreme Court jurisdictionI did not think I would
see a day when the U.S. Senate would pass a bill to remove a
remedy, a constitutional remedy from the jurisdiction of the Su-
preme Court of the United States, but we did that in 1982. You
were not for that one, were you, Attorney General Katzenbach?
Mr. KATZENBACH. NO, I was not. It is easy to get mad at the Su-
preme Court at times. It is easy.
Senator SPECTER. Well, I have gotten mad at them a few times
myself when I was District Attorney and they came down with Mi-
randa v. Arizona and invalidated a lot of evidence which was per-
fectly legal the day before the decision came down and was illegal
the day after and a lot of murderers went free.
Mr. KATZENBACH. I bet you were annoyed. I would have been.
Senator SPECTER. It was very annoying. I had a defendant named
Hickey who robbed a cab and the police questioned him in May of
1966 and they went to his apartment and they found the gun and
they found the victim's clothing and they had all the evidence and
the Supreme Court came down on June 13th with Miranda v. Ari-
zona and said none of that evidence was admissible, and how they
could declare it retroactively inadmissible confounded me in 1966
and it confounds me today.
The point that I was coming to on the issue of jurisdiction of the
Court, Judge Bork has condemned that, has consistently been op-
posed to court stripping and consistently stood up in the civil rights
area on the busing issue, so that at timesand more recent than
1964, when the Senators were voting to limit court jurisdiction,
there was a different point of view expressed by Judge Bork, and
that was not in a context of confirmation.
Mr. KATZENBACH. NO.
Senator SPECTER. Well, I appreciate what you have testified here
today. I have a lot of reservations, as I have expressed them, but I
believe this is a very complex matter, to really make a judgment as
to how much of Judge Bork we accept frcm what he testified here
last week and how much weight we give to his writings and how
we evaluate the whole picture.
Mr. KATZENBACH. I hope I made it clear that I do, too, Senator.
Senator SPECTER. Well, I appreciate your being here.
Senator HUMPHREY. In the interest of the patience and endur-
ance of our witnesses who are to follow, I will not ask any ques-
tions at this point.
General, thank you very much for your testimony. We appreciate
it very much.
Mr. KATZENBACH. Thank you.
The CHAIRMAN. YOU are excused.
Now, at long last, Attorney General Saxbe and Attorney General
Rogers.
Apparently, Attorney General Saxbe could not wait, but we will
accommodate his schedule when he can.
1159
Attorney General Rogers, welcome. Would you please be sworn.
Do you swear to tell the truth, the whole truth, and nothing but
the truth?
Mr. ROGERS. I do.
The CHAIRMAN. Please proceed, General, and thank you for your
forbearance.
TESTIMONY OF HON. WILLIAM ROGERS
Mr. ROGERS. Thank you very much. I have been here since 10:30
and, if you do not mind, I would like to take just a moment to tell
you an experience I had when I was here with then Governor Earl
Warren. I was in charge of presenting the evidence in his behalf,
and we had about 3 or 4 days of testimony, and there were a great
many people opposed to him and there was one particularly trou-
blesome fellow who insisted on testifying first. He turned out to be
the last one and he had a large sheaf of papers, yellow papers, and
he had a plug in his ear, so they finally said okayhe tried for 3
days, and they finally said now it is your turn. He came up and
they tried to swear him in and he would not respond. After the
third time, the Chairman sort of yelled at him, "What is the
matter, why don't you answer the oath?" And he said, "Senator, I
have been here 3 days, my batteries are dead." [Laughter.]
I think my batteries are a little dead, but I appreciate this oppor-
tunity at this late hour, and I appreciate, too, the fact that there
are several Senators remaining.
Mr. Chairman and members of the committee, it is an honor for
me to appear here before this committee in support of the nomina-
tion of Judge Bork as an Associate Justice of the United States Su-
preme Court.
My first job in Washington was here in the Senate as Chief
Counsel for what was then called the War Investigating Commit-
tee, the Senate War Investigating Committee. Later, between 1953
and 1961, I worked in the Justice Department, first as Deputy At-
torney General and later as Attorney General under President Ei-
senhower.
Because of my experience as an employee of the Senate, I was
given a major role in the selection and confirmation of federal
judges, about 200 in all, and I was particularly interested when
Mayor Andrew Young pointed out today that three of the judges
that he thought were particularly important because of civil rights,
they were all judges that I recommended, Albert Tuttle, John
Minor Wisdom, and Frank Johnson, and he was right, they were
leaders in that time and did a great deal to promote the cause of
civil rights.
I also sat through the hearings of Harlan, Warren, Brennan,
Whitaker and Stewart. I sat through the confirmation hearings of
the first four and had charge of presenting the witnesses, and I
commiserated with Potter Stewart when unfair attacks were made
against him during the hearings and during the delay before he
was confirmed.
As to these hearings, I believe these hearings have been the most
thorough, enlightening, provocative, and interesting in recent
memory. The questions have been thoughtful and relevant. The an-
swers have been responsive and of high intellectual and profession-
(1160)
1161
al quality. For lawyers and scholars, it has been a constitutional
adult education course of the highest order; and for law students,
with appropriate editing, it should be required reading.
Having listened with care to these hearings and, unlike some of
the previous witnesses, I actually have listened to them, and after
looking at Judge Bork's record of accomplishments, I do not believe
that President Reagan could have found a more qualified man or
woman to nominate for this job.
Certainly, I can think of no nominee during my professional life
who has been better qualified. As has been stated here, Robert
Bork has had four distinguished careers, first as a lawyer in pri-
vate practice, where he was very successful, as a holder of two en-
dowed chairs at one of the nation's most prestigious law schools, as
the government's chief advocate before the Supreme Court for 4
yearsand I have talked to a lot of people about the quality of his
advocacy and it was superband he served for 5 years as a respect-
ed federal judge in what is probably the second most important
court in the country.
During these years, Judge Bork has compiled a record that is
both impeccable and unparalleled. That is some record. When I
agreed to testify, I was concerned, mistakenly as it turned out,
about some of the things his opponents said about him and about
some of the things he had said, because I had not met him.
Now, haying studied this record as Solicitor Generaland I do
not minimize his record as Solicitor General, he testified, contrary
to what a preceding witness said, he testified that if he disagreed
with the requirement to appear before the Supreme Court in
behalf of the Department of Justice, that he would not appear. So I
think it is unfair not to give him credit for the excellent work he
did as Solicitor General.
Now, having studied this record as Solicitor General, his opinions
as a judge, and as a judge, although the fact was that only a few of
the cases were appealed to the Supreme Court successfully, that
does not detract from the record. If his opinions had been wrong in
100 cases, the lawyers certainly would have appealed, so the fact
that there were few applications for cert, few appeals, to me is a
credit to his record.
I believe he will be an excellent Justice of the Supreme Court,
but I do agree with Senator Specter and some of the other mem-
bers of the committee that these hearings may have been useful in
helping him formulate and express his views, with a better appre-
ciation of the views of Congress.
So, I think this has been a useful exercise. Now, Senator Specter
asked a couple of questions this morning of some of the other wit-
nesses about Brandenburg v. Ohio, and would I believe Judge Bork
would keep his word when he said he supports that opinion now,
and of course I do, there is no doubt about it.
Furthermore, Senator, I think thatif I am correct, I believe
that was a unanimous opinion, nine to nothing. So, the idea some-
how that he would go back on his word, with a nine to nothing
opinion, makes no sense at all. I wondered what was the reluctance
to say yes, he will keep his word. I do not think there is any doubt
about Judge Bork's integrity and, when he told you that he sup-
ported that decision now, I am sure he did.
1162
I must say also that the fact that his views changed over the
years on that subject does not surprise me at all. Mine certainly
did, and a lot of lawyers that I know did, because in those days
well, I was even in the DA's office when Fritz Kuhn was advocat-
ing the overthrow of the government by force and violence, there
was no doubt about that from the standpoint of most lawyers, that
that should not have been permitted, and later on, during the
from 1954 to 1960, that was sort of the prevailing view.
Now, I think the fact that Brandenburg v. Ohio has been decided
and the fact that Judge Bork explained his rationale is a very good
idea, and I think it is helpful to this committee to know that he
feels that way, and I do not believe he has changed his mind at all.
Furthermore, he was asked about a lot of the decisions he made
on the court of appeals, would he reach the same result on the
same set of facts and he said he would, and I believe him. On equal
protection, you may want to talk a little about that later. I would
like to talk about it later, if we have time.
Of course, on the questions of integrity, I do not know how some
of these witnesses could say "I think he is a man of the highest
integrity, and I believe him," and then say he may renege on his
word. No one who knows Judge Bork could or would question him
on that score. The chairman of the committee graciously and ap-
propriately said that Judge Bork is a principled man. That certain-
ly is true. He is a man of integrity and high moral principles.
The thought that he would go to the Supreme Court with some
sinister agenda and renege on what he has told this committee to
me is outrageous. I cannot believe it.
Several members of the committee on both sides of the aisle have
stated that there is not the slightest suggestion of racism in Judge
Bork's life or in his record, and that is certainly true.
I spent a lot of years of my life in matters involving civil rights
and I have no doubt about his commitment to civil rights. He cer-
tainly has a wonderful judicial temperament. No one could have
answered those questions that were asked of him for so long in
such an unruffled and polite fashion without having good judicial
temperament.
In 1953, when we started in the Justice DepartmentI am talk-
ing of the beginning of the Eisenhower administrationthe nation
was in the middle of a civil rights crisis. At first, the first thing we
had to do was to brief and reargue the case of Brown v. Board of
Education. Thereafter, we had to implement that decision, the deci-
sion in that case.
As Judge Bork testified, he supported that decision because he
believed it to be right constitutionally and he believed it to be right
morally. And there were a lot of people at that time who did not
support Brown v. Board of Education.
We established the Civil Rights Division to implement that deci-
sion. Two civil rights statutes were passed in 1957 and 1960. We
drafted them and lobbied for them in Congress and as a result of
those recommendations, in cooperation with Congress, we had
those bills passed.
I argued the constitutionality of the 1957 Act and I helped draft
and testified before Congress in support of it. As the events of the
1960s were to demonstrate, our work at that time began to have an
1163
important tradition of government leadership in the battle to pro-
mote and secure the civil rights of all Americans.
Later, as Solicitor Generaland I do not see how people can dis-
regard his excellent recordhe built on that tradition and on the
accomplishments of the Kennedy administration. It has been too
little noticed that, as Solicitor General, Judge Bork often advanced
positions on behalf of minorities that went beyond those ultimately
adopted by the Supreme Court.
Let me say, too, I have spent a lot of my life in support of civil
rights cases, and if I thought for a moment that he was going to
turn the clock back, I would not be here today. I do not think that
is a possibility.
I might say in that connection that I represented Dr. King, Dr.
Martin Luther King in the Supreme Court in the case of Sullivan
v. New York Times. There were five black ministers in the south-
ern civil rights movement who were defendants, and Dr. King
asked me to represent them and I did, and we were successful.
I was sorry to see this morning some of the people who testified
against him, because I did not think that they proved their case. I
mean, if he had been an idealogue or he had been opposed to
progress in the field of civil rights, he would have votedhe would
not have testified to strip the Supreme Court of jurisdiction. He
would not have testified against the human life bill if he was an
idealogue. Those were very important matters and he took a strong
stand in behalf of the right causes.
Another matter which is of great importance to the public and
which has received insufficient public attention, I believe, is the
role which is played by the Supreme Court in the administration of
criminal justice, both at the State and the federal level. About 50
of the 170 cases decided during the last term, 1985-86, were crimi-
nal cases. Judge Bork's stellar record of law enforcement should be
a source of satisfaction to this committee and, I must say, to all
Americans.
Several Senators on this committee have been prosecutors or
judges and know from personal experience the importance of vigor-
ous law enforcement. Judge Bork understands that, too.
He also understands some of the problems which have handi-
capped law enforcement officials in recent years. Judge Bork has
opposed the application ofhe understands some of the problems
which have handicapped law enforcement officials in recent years.
He has opposed the application of artificial rules which keep the
truth out of the courtroom and which fail to serve any other pur-
pose. As a judge, Robert Bork has handed down tough but fair deci-
sions that have protected the rights of victims and of society as
well as the rights of the accused. That is why organizations repre-
senting nearly 350,000 professionals associated with law enforce-
ment have endorsed his nomination.
As I have said, I believe Judge Bork, if confirmed, will make an
excellent Supreme Court Justice. I strongly urge favorable consid-
eration by this committee, and I sincerely hope he will be con-
firmed by the Senate.
Let me add, too, Mr. Chairman, if I may, that Senator Saxbe,
former Attorney General Saxbe, said he would be glad to come
back before this committee, if you so desired. Mr. Brownell, who is
1164
in Europe, supports the nomination, I think has submitted a state-
ment, he too has said he will be glad to come back and testify. It
happens that he is in Europe at the time.
And I understand that Judge Griffin Bell and Elliot Richardson
support his nomination and will be available to the Committee if it
so desires.
Thank you very much for your time and attention.
1165
STATEMENT OF WILLIAM P. ROGERS
BEFORE THE SENATE JUDICIARY COMMITTEE
IN SUPPORT OF
THE NOMINATION OF JUDGE ROBER1 H. BORK
AS AN ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT
Mr. Chairman and Members of the Committee.
It is an honor for me to appear here before this
Committee in support of the nomination of Judge Bork as
an Associate Justice of the United States Supreme Court.
My first 30b in Washington was here in the Senate -
as Chief Counsel of what was then called the Senate War
Investigating Committee.
Later - between 1953 and 1961 I worked in the Justice
Department - first as Deputy Attorney General and later as
Attorney General under President Eisenhower. Because of
my experience as an employee of the Senate I was given a
major role in the selection and confirmation of federal
judges - about 200 in all - including Harlan, Warren, Brennan,
Whitaker and Stewart. Part of this 30b included the care and
feeding of the nominees. So, I sat through the confirmation
hearings of the first four and commiserated with Potter Stewart
when unfair attacks were made against him during the hearings
and during the long delay before he was confirmed.
I believe these hearings have been the most thorough,
enlightening, provocative and interesting in recent memory.
The questions have been thoughtful and relevant; the answers
have been responsive and of high intellectual and professional
quality. For lawyers and scholars it has been a constitutional
adult education course of the highest order and for law
students it should be required reading.
Having listened with care to these hearings, and after
looking at Judge Bork's record of accomplishments, I do not
believe President Reagan could have found a more qualified man
or woman to nominate for this job. Certainly I can think of no
86-974 0 - 8 9 - 3 9
1166
nominee during my professional life who was better qualified.
Robert Bork has had four distinguished careers in the law -
as a lawyer in private practice, as a holder of two endowed
Chairs at one of the nation's most prestigious law schools, as
the Government's chief advocate before the Supreme Court for
four years, and as a respected federal judge on what is probably
the second most important court in the country for five years.
During these years Judge Bork has compiled a record that is
both impeccable and unparalled.
That is some record. When I agreed to testify - I was
concerned - mistakenly as it turned out - about some of the
things his opponents said about him and about some of the
things he had said. Now, havir.g studied his record as
Solicitor General, his opinions as a Judge, and particularly
his testimony before this Committee, I support him
enthusiastically and without reservation. I believe he
will be an excellent Justice of the Supreme Court. But I
do agree with Senator Spector and some of the other members
of the Committee that these hearings may have been useful to
him in helping him formulate and express his views, with a
better appreciation of the views of Congress.
Of course a Supreme Court Justice must be a person of
highest integrity. No one who knows Judge Bork could, or
would, question him on that score. At the conclusion of his
testimony the Chairman of this Committee graciously and
appropriately said that "Judge Bork is a principled man".
That certainly is true. Judge Bork is a man of integrity
and of high moral principles.
Several members of the Committee - on both sides of
the aisle - have stated that there is not the slightest
suggestion of racism in Judge Bork's life, or in his record.
And that is certainly true.
Judicial Temperment is an important qualification for
a Justice of the Supreme Court. Justice Stewart once said -
in a First Amendment case - that he could not define pornography
but he knew it when he saw it. I have never been able to

1167
define "Judicial Temperment" - but after watching Judge Bork's
thoughtful, cogent and unruffled answers to a host of tough
questions for almost five days - I believe he set a new
standard for judicial temperment. I still can't define it
but Judge Bork has it. I am sure that the members of this
Committee knew it when they saw it.
In 1953 when we started in the Justice Department,
the nation was in the middle of a civil rights crisis.
At first we had to brief and reargue the case of Brown v.
The Board of Education. Thereafter, we had to implement
the decision in that case. As Judge Bork has testified, he
supported that decision because he believed it to be right
constitutionally, and he believed it to be right morally.
We established a Civil Rights Division to implement
it.Two Civil Rights statutes were passed in 1957 and 1960
as a result of Justice Department recommendations - and in
cooperation with Congress. As events of the 1960s were to
demonstrate, our work at that time began an important tradition
of government leadership m the battle to promote and secure
the civil rights for all Americans. Later, as Solicitor
General, Robert Bork built on that tradition, and on the
accomplishments of the Kennedy administration. It has been
too little noticed that as Solicitor General, Judge Bork
often advanced those positions on behalf of minorities
that went beyond those ultimately adopted by the
Supreme Court.
1168
Another matter which is of great importance to the
public, and which has received insufficient public attention,
is the role which is played by the Supreme Court in the
administration of criminal justice - at both the state and
federal level. About 50 of the 170 cases decided during
the 1985-86 Supreme Court term were criminal cases. Judge
Bork's stellar record of law enforcement should be a
source of satisfaction to this Committee and, I must say,
substantial comfort for all Americans.
Several Senators on this Committee have been prosecutors
or judges, and know, from personal experience, the importance
of vigorous law enforcement. Judge Bork understands that too.
He also understands some of the problems which have handicapped
law enforcement officials in recent years. Judge Bork has
opposed the application of artificial rules which keep the
truth out of courtrooms and which fail to serve any other
purpose. As a judge, Robert Bork has handed down tough
but fair decisions that have protected the rights of victims
and of society, as well as the rights of the accused. That
is why organizations representing nearly 350,000 professionals
associated with law enforcement have endorsed his nomination.
As I have said, I believe Judge Bork, if confirmed, will make
an excellent Supreme Court Justice. I strongly urge favorable
consideration by this Committee, and sincerely hope he will be
confirmed by the Senate.

1169
The CHAIRMAN. Thank you for your time and your thoughtful
statement.
Senator Thurmond?
Senator THURMOND. Thank you very much.
Mr. Attorney General, I believe Judge Bork said that he had
written 150 decisions while he has been on the circuit bench. If
those decisions are not out of line with the rest of the court, they
were in line with them, it is strange to see why people would
accuse him of being an extreme right-winger when his decisions
are right in line with the Court, but yet that was done.
He participated in 400 decisions during that time. That is a lot of
decisions, a lot of work, and you did not hear any criticism from
anybody. You did not hear any criticism from anybody opposing
him now at that time against any decision he wrote that I know of.
Do you feel that Judge Bork is a sound man, would make a sound
judge, or does he have the integrity and does he have the character
and the judicial temperament and competence to be a good Su-
preme Court Judge?
Mr. ROGERS. I certainly do, Senator. I think he would be an ex-
cellent Supreme Court Judge, and I think that his record showsI
notice the American Bar Association is one of the criterions who
said a man should be industrious. Well, I do not know of any judge
who is more industrious, who has been more successful. And I
agree with you that he has been in the mainstream of all of the
decisions of that Court, and there areI hate the termsbut there
are a lot of so-called liberals on that Court, a lot of very intelligent,
high-class judges, but he has been in the mainstream of those deci-
sions for five years. It is really difficult for me to understand how
anybody can just brush aside those decisions as if they did not
exist.
This Senate confirmed him for that job. Now, it is true that the
criteria are different to some extent when you are considering a
Supreme Court nominee, there is no doubt about that.
Senator THURMOND. But not very much.
Mr. ROGERS. But whatever it is, by all the standards I know, he
would be a natural selection. I cannot think of any court of appeals
judge during the time I was in the Justice Department who had as
outstanding a record as he has. So, how anyone can just disregard
his record, as if it did not exist, and go back to something he wrote
in 1971, which he said at the time was exploratory and it did not
improve it and he was trying to see what it would bring forth, how
anyone can disqualify for that reasonand I have listened to some
of the testimony and they say, "How would I know what he is
going to do?" Well, I do not think there is any nominee who has
even given the committee as much assurance about what he would
do.
He supports all the Common Cause cases, he said so. He supports
Brandenburg v. Ohio. He supports the Bill of Rights being incorpo-
rated in State law enforcement. I hope that Senator Specter has
not left, because I think that he has taken the right position on
equal protection of the law.
So, some of the things that were said here this morning just were
not true, just factually untrue. For example, one was that Dr.
Kingone of the witnesses said that Judge Bork said that if Dr.
1170
King had challenged laws by disobedience that he, Judge Bork,
would say that he was not protected by the Constitution. On the
contrary, Judge Bork said just the opposite. He said under those
cases, if Dr. King wanted to test the constitutionality of a law by
violating, he thought he was protected by the Constitution.
I was particularly struck, having represented Dr. King in the Su-
preme Court, I noticed that. I noticed that statement was made.
I also noticed a statement was made that Judge Bork said that
the Equal Protection Clause would not apply to women. He never
said anything like that, quite the contrary. He said just the oppo-
site. He said in almost every case he could think of, it applied to
women. In the case of blacks and minorities, he said he could not
think of any exception, so you did not need a reasonable test or
any other kind of a test. He said he could not think of a case where
an exception should be made, where a difference could be made in
the law between a black and another member of the minority and
anybody else, because he said, "I think equal protection applies to
everybody." And he said as far as women are concerned, he only
thought of a couple possibilities. One was serving in combat in the
armed forces, and the Congress has approved of that and so has the
Supreme Court.
So, I read his testimony that he thinks equal protection law
should apply to everybody and he said that in the case possibly of
women, if there was some reasonable argument that could be
made, it would have to be considered, but he could not think of any
except the ones he mentioned. So to me he said the equal protec-
tion laws apply, without exception to blacks and minorities, and
almost without exception to women and all other persons.
Senator THURMOND. NOW, Judge Bork has got a lot of unfavor-
able publicity, but as former Attorney General William French
Smith said, it is the distortions and misrepresentations and the un-
truths that have been told about him that is responsible for it. Is
that your opinion, too?
Mr. ROGERS. Well, it is hard for me to analyze why. I think cer-
tainly there have been a lot of distortions, and I think when some
nomination of this kind gets in the political arena and you have a
lot of special interest groups who believe, honestly believe that
some of these things that have been said about Judge Bork are
true, it is easy to become emotional about it and I can understand
it. But I think there are an awful lot of distortions.
For example, the idea that he does not think the Equal Protec-
tion Clause applies to women, how can they say that? There are
two major cases in the State Department and he has decided in
favor of women.
Insofar as the Northwest Airlines case is concerned he said that
trying to make a distinction between men and women by calling
one a person and the other a flight attendant was unconstitutional.
He said they should be treated the same because they had basically
the same assignments, and therefore it was unconstitutional to
make that distinction. And he has a whole lot of other decisions of
that kind.
So when I hear people say it, I don't know what they are talking
about. Now are they still talking about the 1971 Indiana Law
School Review? Maybe that is what they are talking about, but
1171
that has long been supplanted by a record that is quite an out-
standing record.
Senator THURMOND. From what you say, I assume that you rec-
ommend his confirmation highly to this committee?
Mr. ROGERS. Yes, I do.
The CHAIRMAN. Senator from Alabama?
Senator HEFLIN. I don't believe I have any questions.
The CHAIRMAN. The Senator from Utah?
Senator HATCH. I just want to welcome you, Mr. Attorney Gener-
al, Mr. Secretary, having meant so much to this country for so
many years. I think you have really laid it out. It makes you
wonder why anybody would be against Judge Bork after listening
to you, and it also I think points out how political this process has
become.
Mr. ROGERS. Senator, you know Bill Coleman is a fine man. I like
him, and we have been on the same side. The civil rights people
over here this morning, I talked to Andy Young afterwards. He re-
members when I represented Dr. Martin Luther King. Incidentally,
I thought he was the most reserved in what he said. He didn't
sound as if he was too much against Judge Bork. He pointed out
everything he said I certainly could agree, and I think Judge Bork
would agree with it. I mean, the progress that has been made in
the South, how wonderful it has been that the rules of the Court
have been accepted and that the crisis situation that we had in the
late 1950's and early 1960's has been calmed down.
I do think it is rather sad, some of this opposition, which I think
is quite unfair. I think it may add, it may stimulate more feeling of
that kind which I hope doesn't occur.
Senator HATCH. Well, I appreciate those comments. I will make
just one other comment. You have mentioned seven former Attor-
neys General of the United States who support Robert Bork: the
four of you who testified today, except for Mr. Saxbe, who, of
course, had to leave, but he was certainly here to testify for Judge
Bork; General Levi; General Smith; yourself; Bill Saxbe; you have
got Eliot Richardson, Herb Brownell, and Griffin Bell. And even
Mr. Katzenbach, who was against Judge Bork here this evening,
said that he had some questions and qualms but he might be per
suaded. And all I can say is that is quite a number, a large number
of Attorneys General of the United States.
Mr. ROGERS. And not to say, Senator, not to mention the two Su-
preme Court, sitting Supreme Court Justices who have supported
him.
Senator HATCH. Well, that is correct.
Mr. ROGERS. I can't remembermaybe there have been. I can't
remember any situation that is similar where Supreme Court Jus-
tices publicly have endorsed a candidate who was controversial.
Senator HATCH. Well, I want to thank you for your testimony,
and it is great to see you before this committee again and we ap-
preciate you being here.
Mr. ROGERS. Thank you.
The CHAIRMAN. Before I go to my next colleague, I want it to be
clear, my recollection is that Mr. Katzenbach said he had an open
mind, not that he might be persuaded, when the Senator
1172
Senator HATCH. NO, he said he might be persuaded. He said he
was persuadable.
Senator SIMPSON. Persuadable is what he said.
Senator HATCH. I think I cited it carefully and clearly.
Mr. ROGERS. That is why lawyers argue about words.
The CHAIRMAN. The Senator from Ohio?
Senator METZENBAUM. Mr. Rogers, although I wasn't here, I was
listening to you on the radio, and I just have one question. I sort of
heard your wrap-up that you don't know why anybody is against
him, and I wonderyou are a brilliant man and you have had a
great record, and it is a very decent record and a commendable
one.
Do you think it is all make believe that women and blacks, con-
sumer groups, other groups are so frightened of this man? How do
you think it all came to pass? You think somebody could just whip
them up, and all of those women are not intelligent enough to un-
derstand? Some of them are lawyers. Some of them are professors.
A large group come from or are very active in the business world.
How do you think it came to pass that all of those groups are op-
posed to this man, if, as you say, he really is very much in their
corner on issues of discrimination?
Mr. ROGERS. Well, Senator, I will be glad to take a shot at that. I
think that you are probably overstating it when you say all
women.
Senator METZENBAUM. I don't mean all women. I don't mean 100
percent of the women. If I said that, I don't mean that, of course.
Mr. ROGERS. Well, what did you mean then?
Senator METZENBAUM. Well, I said all of these groups.
Mr. ROGERS. Oh, the ones you have met.
Senator METZENBAUM. NO. What I am saying is that all of the
groups that represent women, and I could just go through a whole
list of them, but there is no need to do that, all of the groups that
speak for blacks in this country and minorities have indicated
great concern. The American Civil Liberties Union doesn't normal-
ly take a position with respect to the confirmation of Supreme
Court Justices. Hasn't done so, if my recollection serves me right, I
think I read in the paper not in the last 50 years. I may be wrong
about that.
Mr. ROGERS. I think they have done it once or twice before, but
you are essentially correct.
Senator METZENBAUM. Yes, that is right. The point is they don't
normally do it. And a number of other organizations that haven't
in the past taken a position, and what I am really saying is, if his
record is as good as you would suggest, and I don't question your
sincerity at all, then how does it come about that so many are so
uniform and so strong in their opposition?
Mr. ROGERS. Well, that is a good question, and I think certainly
those women or others that you have mentioned have not gone
through the record as members of this committee or as I have, so
they to some extent have relied on what they have been told. And
so many of the special interest groups made a decision that they
would oppose him because they had a feeling I believe that some-
how he was going to be a swing vote and therefore his confirmation
became of vital importance; and because they had been misled
1173
about what he stood for, they were able to generate a great deal of
political opposition.
I don't doubt that some of these organizations believe what they
have been saying, although I do think that it has been pointed out
here many of the ads are extremely untrue, false.
Also, it is based on the premiseI think this fear is based on the
premise that it is a single Justice because there is a division in the
Court is going to be the controlling vote. Well, of course, if you
think that through, you realize what a terrible insult that is to ev-
erybody else on the Court. They don't vote that way all the time.
You don't have a split on everything that way.
Furthermore, they respect the institution. They, I mean the Su-
preme Court Justices, respect the institution. And if, as someone
suggested here earlier in the proceedings, that maybe Judge Bork
had a sinister agenda and that he was lying to this committee, his
peers on the Supreme Court would not let him get away with it.
They are responsible people. They would know that right away,
and they would have a lot of peer pressure.
So the idea somehow that he automatically is going to control
that Supreme Court is just unfair. It is unfair to Judge O'Connor.
It is unfair to Judge Stevens. If Judge Stevens thought for a
minute that the nomination and confirmation of Judge Bork was
going to make his vote of no value, do you think he would publicly
support him.
Senator METZENBAUM. Let me ask you about one group. You
have seen the ads in the papers, Planned Parenthood. Now nobody
would call them a liberal group or nobody would say that these are
unintelligent people. I have a personal recollection of a situation
with them where I had been particularly helpful in connection
with a piece of legislation some years ago, going back to, maybe,
1981. And I remember that the man who was I think the national
president had said he wanted to help me, and he was going to help
me in Ohio, and I thought that was very good. I was a political can-
didate.
I said to him, Mr. XI won't use his name, but I would be very
glad to share it with you privatelyyou were going to help me and
you indicated that the women in Planned Parenthood were going
to be extremely supportive, and I just wanted to ask you what are
they prepared to do. How will they help? Will they go out pre-
cincts? Will they raise money? Whatever one does in politics.
And I remember his saying to me, and I remember it so clearly.
He said, Senator, I am embarrassed. They are all Republicans.
When I went to them, I said to them that we had to help you, and
they said: We can't help him. He is a Democrat. We are all Repub-
licans.
Now I find no fault with that all and I am not making a point of
it, except this group is frightened. They are frightened that if he
comes into office the efforts they make in making information
available with respect to birth control will no longer be possible.
The information they make available with respect to the whole
problem of having a child, the whole question of planned parent-
hood. A very well-respected organization. I wouldn't be the least bit
surprised if you or your wife were a member of it.
1174
And how do you explain the fact that they have gone further out
in this instance than they have ever done before in my recollection
as a United States Senator?
Mr. ROGERS. Well, I think there is an explanation for that. I
think they have been worried about Griswold v. Connecticut, and
because Judge Bork disagreed with the reasoning in that case and,
of course, he didn't vote on it, he was just a professor at the time.
But he disagreed with the reasoning in that case, so it is very easy
to draw the conclusion, therefore, he is against contraception.
Senator METZENBAUM. Contraception in connection with married
couples in the privacy of their own bedroom, which was the Gris-
wold case.
Mr. ROGERS. Well, yes, whatever. I mean, it is stillthe principle
thrust of that was not against married couples in their bedroom.
The thrust of that case was because of birth control clinics around
that felt that their work was being hampered by this law and they
were the ones that brought the action.
But there are two aspects of that I think that the women's
groups have forgotten. One was, he did nothe, Judge Bork, did
not disagree with the result. In fact, he said in his writing that
what were the words he used?
Senator SIMPSON. He said it was "nutty."
Mr. ROGERS. Nutty. He said the law was nutty. And Justice Stew-
art, who agreed with his view on that, said it was absolutely law.
A.nd Archibald Cox, who has just written a book which was re-
viewed yesterday in the New York Times, supported the view of
Judge Bork.
Now I think that it is difficult for people to disassociate constitu-
tional values and views on how the Constitution should be imple-
mented from the results, so I think he has been tarred with the
idea that he supports snooping around bedrooms and he is against
contraception, and so forth. I don't think he is.
I haveI will tell you this. I don't know how he would vote. I
have no idea how he will vote on these cases. He thought, and a lot
of prominent scholars and judges thought, that the reasoning in
that case that was decided, as I remember, by Judge Douglas and
Goldberg, was subject to criticism, and you had Douglas and Gold-
berg on one side and you had men like Potter Stewart and Black
on the other.
Now I can't see how you can get too excited about that. Why
would that alienate all the women because of it?
And of course, obviously, Roe v. Wade, he has never taken a posi-
tion on it. I noticed Bill Wade said hehe, Bill Wade, didn't agree
with the decision. I don't know how I stand, and I sure don't know
how Judge Bork stands on it. I think anybody that can make a pre-
diction on that is
The CHAIRMAN. Would the Senator yield for a second?
General, I believe he did notI believe you are correct he did not
say how he would vote on Roe, but he did, I think the record will
show, say how he would have voted on Griswold based on the argu-
ments brought to the Court.
Mr. ROGERS. That is right, I think he did. But he also said
The CHAIRMAN. I am not splitting hairs. I think you are repre-
senting the position well.
1175
Mr. ROGERS. I think he also said that he didn't feel that that law
ever would have been enforced.
The CHAIRMAN. That is correct.
The Senator's time is up, but take a couple more minutes. But
just a couple, because the ABA has been waiting all day.
Senator METZENBAUM. My respected Attorney General is taking
the time, and I didn't want to cut him off on a question.
I do want to point out that he has never offered any alternative
reasoning to reach the result, the same result in connection with
the Griswold case, and I also want to point out that he said that
there was no constitutional right of privacy as recently as this
summer.
Now having said that, let me come back to the Planned Parent-
hood group because you mentioned that you thought that their po-
sition came about by reason of their concern in the Griswold case.
You did not mention Roe v. Wade.
Mr. ROGERS. I just did.
Senator METZENBAUM. Oh, you just did. Put that package all to-
gether and I think we understand why they are concerned.
Mr. ROGERS. I think so, too.
Senator, could I just make one observation on your comments?
Senator METZENBAUM. Please do.
Mr. ROGERS. I think there has been an awful lot of confusion
about what Judge Bork stands for in the privacy field. His objec-
tion to that was that they had developed a new different theory of
privacy which he said had not existed before, and I believe most
scholars accept that. And he didn't think it was desirable to devel-
op a new theory of privacy.
He supports all the privacy laws and all the constitutional inter-
pretations of the privacy laws that existed, and his position is that
you didn't need to create a new one which would be ambiguous,
you wouldn't know whether it would apply to everything or what,
why it was different. And he said in the case of Griswold he would
seek to find other constitutional basis to overrule that.
Senator METZENBAUM. But that is my point, Mr. General, and
that is that he is a learned scholar. He took the position that he
did with respect to Griswold, and then he talks about he would
seek to find a basis for overriding it. Where is he? We haven't
heard from him? When are we going to hear from him, 19
Mr. ROGERS. He wasn't a judge at the time. He was doing what
professors do all the time, and I have heard some discussions about
professors. They try to figure out things they can write that are
critical of courts or Congress or somebody, and they get a contro-
versy going. And he and others, like Archibald Cox, they both de-
cided that the reasoning in that case was not sound, and that
doesn't prove anything except they didn't think the reasoning in
that case was sound.
Senator METZENBAUM. But we deal with results, and if you are a
married couple concerned about privacy, if you are concerned
about the results of the Roe v. Wade matter, if you are concerned
about free speech, if you are concerned about the impact of anti-
trust laws against consumers, if you have any of these concerns
Judge Bork would say, well, we will find new lines of reasoning, we
will find a new concept. And when you get all done, you become
1176
apprehensive and, as I have said a couple of times, you actually
become frightened.
Mr. ROGERS. Well, I think anybody who is frightened about
Judge Bork I think is making a serious mistake. I think he will be
a splendid judge. I don't believe you are going to be able to predict
where he is going to stand.
You can predict the line of reasoning he will follow, but you are
not going to find that he is going to fail to appreciate the results of
his reasoning. I mean, I think in the Griswold case, as I say, he
started out saying this law iswhatever it wasnutty, and Potter
Stewart said it was absolutely silly. So he had no trouble with the
law. It was how the Constitution is applied to that set of facts. But
I have taken too much time, Senator.
The CHAIRMAN. NO, you haven't, General, and I just will inter-
ject one thing. Far be it from me to be argumentative with a man
of your stature and I think your testimony has been very insight-
ful, but quite frankly I think you are right on what the Judge has
said about speech and equal protection. I think the record will
show, and I will just send you a portion of it, that I think you mis-
understand his position as he stated it on privacy. He has been
very straightforward about that. He didn't say he would seek to
find. He said that he could find none, and he talked about a gener-
alized right of privacy not existing.
And again, I don't mean to be argumentative because I think you
are accurate in the way you are portraying him, particularly when
you said you cannot predict how he will rule but you can predict
his line of reasoning.
The one line of reasoning that has stayed consistentI do not
mean to be smart when I say thatthe one line of reasoning that
has stayed consistent is the line of reasoning relative to a general
right of privacy in the Constitution. He has written about it. He
spoke about it here, even though he acknowledges the law in Gris-
wold was nutty.
I am not suggestingnor is anybody elsethat he thinks the law
is a good idea. But I believe you are correct when you say his line
of reasoning is predictable, and I may be mistaken, but we will
have plenty of time to discuss that.
I will not speak any longer. I yield to my friend from Wyoming,
and then on down the line, and you will be able to get yourself
some dinner, hopefully, Mr. Secretary.
Senator SIMPSON. YOU have been here since 10:30 this morning,
haven't you?
Mr. ROGERS. Yes.
Senator SIMPSON. YOU are a very patient man. This is, however,
typical of the fairness of the Chairman. He is going to see that it is
done this way, and he does not just say it, he does it, even though
we are all getting bags under our eyes and some distressing person-
al continuation.
The Griswold case, you cannot believe how much time we have
spent on that nutty case, and how much mileage the opponents of
Bork got out of it. This was the key. This must have been the one
that kept them up late. This was the green eyeshade special here.
The Griswold case. A goofy kind of a thing. An 80-year old law.
1177
Nobody had ever brought a case under it. Unless you go into the
bedroom and find out if they are using a contraceptive, which is
rather difficult in most circumstances, I think.
And so the law professors cooked it up and they said, let's run a
test on this, so they found the doctor who was peddling contracep-
tive devices, and thus this case, a nutty case. And Judge Hugo
Black referred to it as offensive. He referred to the statute as offen-
sive.
Nobody likes to quote Black on the Griswold case, but I think it
is important and I will just insert it in the record. He saidhe
added, the law is every bit as offensive to me as it is to my breth-
ren of the majority, and my brothers Harlan, White and Goldberg.
He said, the Court talks about constitutional right of privacy. This
could come right out of Bork's mouth. It does not even have to be
reinterpreted in any way. You do not have to do anything with it.
You do not have to distill it:
"The Court talks about a constitutional right of privacy"this is
Black talking"as though there is some constitutional provision or
provisions forbidding any law ever to be passed which might
abridge the, quote, 'privacy' of, quote, 'individuals,' but there is
not," unquote.
That is what he said. That is what Black said, and that is what
gets so remarkably distorted. And Judge Bork also said, and if I
recall, Mr. Chairman, he said he would continue to inquire into
and seek to find some, quote, "right of privacy" that would fit. He
did not lock himself away, but he said, there are other provisions
in the Constitution that would take care of this case very nicely.
Would you not agree?
Mr. ROGERS. I certainly would.
Senator SIMPSON. Of course.
Mr. ROGERS. That is exactly what he said. He also said that
spending so much time on discussion about condoms when state
governments all over the nation are urging people to use them,
that any law maker or legislative body that attempted to outlaw
them would be crazy. So that it is a totally hypothetical situation.
Senator SIMPSON. Well, he said it could be found, indeed, under
other protections in the law and under the Constitution and that is
what he said.
Well, of course, I had not known until just recently that my
friend Justice White had indicated on a public forum of the 17th
that he favored Judge Bork, a nominee of President Kennedy, and
a very thoughtful man; a friend I have known for many years, a
westerner and a very, very bright and thoughtful member of the
U.S. Supreme Court.
But somehow they will play that down. That will get lost back on
page 17 with the truss ads. And that is the way this works around
here, any endorsement like that. I believe Justice Stevens' endorse-
ment appeared on page 17 somewhere back in that area.
So we all have been there before. And the reason, why are these
groups doing this, the Senator from Ohio asks? It is very simple.
All of these groups benefit from judicial activism instead of judicial
restraint. That is the real reason. They hope to wing it and not
stick with a strict interpretation of the Constitution. They want to
1178
use emotion and fear and guilt and racism. That is the way that
works.
The ACLU has a particular interest here. They have got six
cases that have come up from the lower court where they won the
day, and if there is a four-four split in that Court for a long enough
period of time, it is very likely they will assure that they will pre-
vail. They have got real stakes in this one.
We will visit with the ACLU when they come in and find out
some of the reasons for that. But with the packets and the kits and
the galvanizing of the troops and students bodies all over the
United States, it is just, you know, if you want to join us today, we
want to talk about Bork; he is a racist, he is a sterilizer, he will be
in your bedroom, he will do this.
You know, people are alarmed and stunned and appalled. So that
is our job to try to see if we cannot see the real Robert Bork, and
the people of America certainly saw him.
I just want to say to you, it has been a distinct pleasure to get to
know you. This country continues to draw upon you. We draw upon
your resources often, so many ways, the Challenger, these other
things. I hope you are always there where we can do that, because
you are superb.
The CHAIRMAN. The Senator from Pennsylvania.
Mr. Attorney General or Mr. Secretary, I join my colleague, Sen-
ator Simpson, in those words of high praise. And again today we
have kept you here for almost 10 hours and I am going to be rela-
tively brief.
You commented earlier about the case of Brandenburg v. Ohio
which deals with the free speech issue, clear and present danger,
and you said that, of course, Judge Bork would keep his word, and
as we had commented earlier, Judge Bork disagreed with the prin-
ciple, with the philosophy, of the clear and present danger test.
You addressed it, but I want to pursue it for just a moment.
It was a nine to nothing opinion. It involved a case of a Ku Klux
Klan gathering and there were racial comments, and it involved an
Ohio statute which the Supreme Court said was unconstitutional
on its face and unconstitutional as applied. I think everyone con-
cedes Judge Bork's integrity and his intent to carry out his word,
but the critical question which troubles me is, if he disagrees with
the underlying philosophy of clear-and-present-danger test, even
though he has accepted the principle, when the next case comes up
it is going to be slightly different than the facts of the Brandenburg
case.
Where is the predictability that he really can follow the principle
if he philosophically disagrees with it?
Mr. ROGERS. Well, I think that is a good question. Of course, in
that case, as I say, I suppose it is academic in the sense that there
are nine judges in the Court who have already decided that. But I
think his view is, as I heard him, that he would accept it as is and
would not attempt to change it.
I do not think there would be any reason to change it. He point-
ed out that the reason that a lot of us, including myself, supported
the previous doctrine of trying to overthrow the Government of the
1179
United States by force and violence, the advocacy of that was not
protected. And this was true of a great many lawyers and judges.
Judge Bork pointed out that the situation has changed. People
have found out that that kind of speech really does not do any
harm in this country. No one pays any attention to it.
If you had a situation wheresuppose we were dealing with ter-
rorists instead of communist groups or fascist groups or Ku Klux
Klan groups, attitudes might change back again. I would hope not,
but I supposefor example, I am not surethis committee has not
discussed, what is the protection when you get on an airplane and
you say, I have a bomb? I mean, I do not think the Constitution
protects that.
Now, move away from that a little bit. Suppose you do not say
you have a bomb, but you tell the flight attendant, watch out for
that suitcase, there may be a bomb in it, sort of by way of a joke. Is
that protected? That is a pretty close case.
I think in terms of overthrowing the Government, I think that
the Brandenburg case is a very sound, solid case and I think you
can be absolutely sure that that standard in that case will continue
to be the constitutional standard in our lifetime.
Senator SPECTER. Attorney General Rogers, long after the Bran-
denburg case, Judge Bork was still disagreeing with it. It came
down in 1969. He flatly disagreed with it in his famous law review
article in Indiana Law Review. He spoke later at the University of
Michigan and he flatly disagreed with it.
When you talk about the prosecutions when you were in the Jus-
tice Department in the Eisenhower administration, when the
Smith Act cases were being carried on, there was agreement with
the principle of clear and present danger, that you could not con-
vict somebody from advocacy unless there was a imminent risk of
violence. That has been an established principle of law of the
United States at least since De Jonge v. Oregon, Chief Justice
Hughes in the 1930s.
So that there has been a significant variance from well estab-
lished law that Judge Bork has articulated, and now he accepts the
settled doctrine but he disagrees with the principle, and when we
draw these wavy lines, as he testified, it is just a concern as to his
ability, notwithstanding the best of intentions to faithfully apply
doctrine, that is philosophically disagreed with.
Mr. ROGERS. Well, I know you believe that. I do not think he
would have any problem. I think that you can carry out a law that
you philosophically degree with, depending on what your duty is. I
mean, I was a DA in New York, as you were, for many years, and
there were several matters that I prosecuted that were law that I
did not agree with. But I still did it. I did not have any hesitation. I
did not fail to do my duty just because I did not agree with it, and I
think in his case, he disagreed 20 years ago with the reasoning of
it, and I think he has given this committee all the possible assur-
anceas a matter of fact, he probably has gone farther than any
other nominee has ever gone to give you assurance that he fully
supports it.
Senator SPECTER. Well, there are some other similar issues on
equal protection of the law, but I am going to defer to the hour,
and thank you very much, Mr. Attorney General.
1180
Senator HUMPHREY. General Rogers, you were in at the outset of
the civil rights movementthe modern civil rights movement
that began in the 1950s and blossomed and flowered in the 1960s
and 1970s. Surely you must be highly credible among the civil
rights leaders of those days and the leaders of today as someone
who has stood with them in bringing about a fuller participation,
fuller equality for the law.
No one can question where Bill Rogers comes from in the area of
civil rights by virtue of the long years of consistent work in behalf
of equality for everyone before the law. So with that background I
should think that you would have a great deal of credibility.
Let me ask you this. Some have repeatedly tried to dismiss the
importance of the efforts of Robert Bork as Solicitor General in the
cases that he argued, in the briefs that he filed. They have tried to
discount, dismiss the importance ofironically and incrediblythe
importance of the many decisions he has participated in or written
on the DC Circuit Court of Appeals, some of whichto be sure, not
a great number, I think about eighteight of which 400 some-odd
cases dealt with substantive civil rights issues, and in seven of
eight of those cases as you know he came down on the side of the
minority person or the woman.
What do you say to those who insist on dismissing the impor-
tance of Robert Bork's efforts as Solicitor General and DC Circuit
Court of Appeals Judge?
Mr. ROGERS. Well, I guess what I have said here today, I do not
think you can. But I am not sure that he changed many minds,
particularly so many people were committed before the hearing
started and having taken public positions. It is very difficult to
change their minds.
I mean, you know, you asked Nick Katzenbach, are you persuad-
able. Well, he says yes. But how could he change his mind? He is
way out on the limb with all of his peers and all of his friends and
everything.
I have great respect for Bill Coleman and I know that he has
some doubts about Judge Bork which I think are unfounded. But I
can understand it. I do not think, probably, that when you are
dealing with people that are fully committed against him, that you
can change their minds.
Mr. ROGERS. All I can say is that I have read, I think, most of the
cases he has written, most of the things he has written in the field
of civil rights, and if I thought for a moment that he had an ounce
of prejudice or any racism or was out to do any harm to the civil
rights movement, I would not be here.
Senator HUMPHREY. Yes. Well, you are quite right. It is difficult
to change minds of those who are way, way out on a limb. But
after all, the American people, I hope, will still have something to
say about how their Senators vote on this issue, and many of them
are tuned in and listening by various means.
So with your credibilityand I especially want black Americans
to hear you say this in whatever way you choose to say itbut is it
relevant to take into consideration and how much weight do we
1181
give to those actions of Robert Bork as Solicitor General and DC
Circuit Court of Appeals Judge? Are they irrelevant or do they
offer some important information and evidence about Robert
Bork's commitment to equality?
Mr. ROGERS. Well, I think, of course, they are the key to what
Judge Bork thinks. People talk about who is he and what does he
think. I think the best evidence is not something you wrote 20
years ago or whenever it was16 years ago; it is what he has done.
It is what he has done in public life. And what he has done as So-
licitor General, what he did as Solicitor General, was he was a
strong supporter of civil rights.
Senator HUMPHREY. Yes. But they argue that he was only follow-
ing orders and therefore whatever he did is irrelevant; is that true?
Mr. ROGERS. NO. Of course that is not true.
Senator HUMPHREY. Does the Solicitor General have a good deal
of latitude? No latitude? How much latitude does one have?
Mr. ROGERS. Well, of course, that varies with administrations,
but the Solicitor General has a great deal of latitude and if he felt
for a moment that he was doing something that was unconscion-
able he did not agree with, he would not do it. And while I was in
the Department of Justice for 8 years, the Solicitor General had
great latitude to decide these things, and I am sure that Judge
Bork did. He said so.
So I do not think you can dismiss what he did. He had a great
record as the Solicitor General.
Senator HUMPHREY. SO it ought to be taken into consideration by
this committee?
Mr. ROGERS. Of course.
Senator HUMPHREY. And not dismissed on the excuse that he was
simply working for a client.
Mr. ROGERS. Of course. I mean, a man like Judge Bork could not
do that. He could not consistently go into court and argue things
he did not believe in.
Senator HUMPHREY. Fine. Now, what about his decisions, his par-
ticipation in decisions on the D.C. Circuit Court of Appeals? There
are those hereI think we have refuted this charge a number of
times; I would like to hear what you have to say on this subject
there are those who say that his decisions in civil rights or else-
where, any of his decisions, do not matter, because lower court
judges are bound by Supreme Court precedent.
To be sure, that is true, but the key question is to what extent
are they bound. The key question is to what extent do they have
latitude; to what extent did Robert Bork have latitude. Did he have
sufficient latitude such that his decisions are an important evi-
dence to us in determining this man's commitment to equality
before the law?
Mr. ROGERS. Well, of course, they are important. It is true that a
circuit court judge is normally expected to and does, as a rule,
agree with Supreme Court decisions. On the other hand, a lot of
the Supreme Court decisions are not too clearcut. And he could
decide things, or write his opinions in a way that may vary a little
bit from the opinions of the Supreme Court.
But furthermore, if he disputes the decision of the Supreme
Court, he can write in his opinion that he does not agree with it.
1182
He can say, "I support this in view of such-and-such a case in the
Supreme Court, but my own view is that that was wrong," and he
can express his views.
So not only his decisions but his opinions as a district court judge
are vitally important.
Senator HUMPHREY. Vitally important.
Mr. ROGERS. I have looked them over, and I do not see anything
there that should cause anybody any concern. And to brush them
aside as if they did not exist, I think is unfair.
Senator HUMPHREY. TO say the least.
The last question, or the last focus, at leastare you a member
of the ABA?
Mr. ROGERS. Yes.
Senator HUMPHREY. A lifelong or career-long member?
Mr. ROGERS. TOO long.
Senator HUMPHREY. I can understand that. What are your
thoughts as a lawyer and a member of the ABA on this seeming
change of opinion, referring, of course, to the fact that ABA gave
Judge Bork its highest qualification, highest rating, in 1982 by
unanimous vote, and in this case, gives Judge Bork its highest
rating for Supreme Court by a vote of ten in favor, highest rating,
ten in favor; one, not opposed; and four, opposed to his confirma-
tion?
Mr. ROGERS. Well, maybe I should wait and hear what they say. I
will say that as far as I am concerned, based on my experience
well, let me go back a bit and say, we in the Eisenhower adminis-
tration started the procedure with the American Bar Association,
because President Eisenhower wanted to be sure we had highly-
qualified judges, and he asked us, and me in particular, to set up
the procedure. So I set up this procedure, and in over 200 cases, we
worked with the ABA.
Now, at that time, the rule was that the ABA would not deal
with the political or social or judicial views of any candidate; that
they would confine themselves to other matters of his qualifica-
tions, including his scholarship, his experience, his regard in the
community, judicial temperament, and things of that kind. And it
was clearly defined that they would not get into how he stood on
particular matters, particular judicial matters.
And as far as I know, all the 8 years I was there, they never
varied from that. If they have changed the rules, well, that is some-
thing else again. So I guess I had better wait and see what they
say.
Senator HUMPHREY. That is certainly an example that I wish
others would follow, waiting to hear the arguments before making
up their mindseven though I tempted you to make up your mind
in advance of the arguments.
Thank you.
The CHAIRMAN. General, thank you so much. You have been
very, very gracious.
Mr. ROGERS. Thank you, Mr. Chairman. I appreciate this oppor-
tunity. I always enjoy it. Thank you.
Senator LEAHY. Mr. Chairman, I might say, with Mr. Rogers
here, we often have comments made about distinguished people,
and certainly, it would be very, very rare for this committee or any
1183
other committee to have anybody with a more distinguished record
than William Rogers. I am also glad to see you here, sir.
Mr. ROGERS. Thank you very much.
The CHAIRMAN. Thank you, Mr. Secretary.
Now, our last witness, and I apologize for his being brought on so
late.
Judge Tyler, are you and Mr. Fiske both going to be testifying?
Judge TYLER. Mr. Chairman, yes.
The CHAIRMAN. Would you both stand and be sworn?
Do you swear the testimony you are about to give will be the
whole truth and nothing but the truth, so help you, God?
Judge TYLER. Yes.
Mr. FISKE. Yes.
The CHAIRMAN. Gentlemen, welcome.
Judge Harold R. Tyler, Jr., of New York; and Mr. Robert Fiske,
we welcome you both, and appreciate your being willing to be here
so late.
I want to say at the outset that I would give you the option of
going tomorrow morning, but I understand tomorrow morning is
not a good time for you, and so we will continue to proceed tonight.
I thank you very, very much, and will you please proceed?
STATEMENT OF HON. HAROLD R. TYLER, JR., ACCOMPANIED BY
ROBERT FISKE
Judge TYLER. Thank you, Mr. Chairman.
You are quite correct. We are grateful to the committee for al-
lowing us to appear this evening.
As indicated, my name is Harold Tyler. I am the new Chairman
of the ABA Select Committee on the Federal Judiciary. With me is
Robert Fiske, also of New York, who was my leader, except that
recently I took over in the middle of the Bork investigation, and he
is gracious enough to let me do most of the heavy lifting tonight.
But he is the one who started us on our work, and of course, it is
very helpful that he is here to fill in any gaps that might be in my
knowledge or information.
As you know, the committee commenced its investigations on
July 2; we concluded on or about September 8. Shortly thereafter, I
notified Chairman Biden in writing and orally, as well as the ad-
ministration in a very brief letter, where we came out
Senator METZENBAUM. I did not want to interrupt you, but you
said you started on July 2nd and finished on July 8th?
Judge TYLER. If I said that, Senator Metzenbaum, I am mistak-
enSeptember 8th. I beg your pardon if I misspoke.
Senator METZENBAUM. I did not mean to interrupt you, but I
thought the document said September 8th.
Judge TYLER. I am glad you did.
As you know, we delivered yesterday evening copies of our longer
letter or report in which we indicated that a majority of the com-
mittee voted Judge Bork "well qualified," the highest rating for a
Supreme Court Justice candidate, a rating which is somewhat dif-
ferent than the rating system we use for lower court judges.
One member voted not opposed, and four members voted not
qualified. To summarize, ten members voted well-qualified; one, not
opposed; and four, not qualified.
As you will see from the letter, we endeavored to summarize the
grounds, at least in general terms, of the position of the minority. I
think, in some respects, the apparent reasoning of the minority
shows up a little bit, at least, in some of the findings we summarize
in our letter.
Briefly stated, we interviewed over 400 members of the profes-
sion, both judges, lawyers, and people in academic life. We received
a number of submissions from groups, almost all of which, I am
sure, have made submissions already to this committee.
We looked at the opinions of the nominee and his career in the
DC circuit. We consulted others on those opinions. We met three
times, not over the telephone, but once in San Francisco on August
7th, once in New York City on or about August 28th, and then our
final meeting took placeand I am sorry to say I cannot remember
if it was just before or just after Labor Day. This was an investiga-
(1184)
1185
tion which as far as I can tell, at least, from the records of the com-
mittee, was much more extensive, perhaps, than any other in the
history of this committee's workif only because, of course, we had
a good deal of time, and we were thus able to receive much more
information, and that is what happened.
Now, one other note on how we proceeded. We are not, and never
should be thought of as professional pollsters. As a matter of fact, I
would think any professional pollster or statistician would probably
understandably and correctly be appalled at our methodology.
Our people, who come from all corners of this Republic, one or
more members, as you know, from each of our judicial circuits, talk
to people, and then they report the results of their interviews.
The interviewees do not always talk in the same language. I
assume that many of the interviewers do not always talk in the
same language. Therefore, we do not get results which are in re-
sponse to written questions; we do not get check sheets from each
interviewee as to what he or she thought about a particular nomi-
nee.
Therefore, Mr. Chairman, I am content to stop here. I know you
have all read our report which we delivered yesterday, and we will
endeavor, of course, to answer any questions.
I am here, I must say, acting as the principal spokesperson. I
intend to carry water on both shoulders, I guess, to the extent that
I am prepared to do the best I can to explain how the majority and
the minority came to their conclusions without, of course, being
able to get in their minds, and indeed, without being able to re-
member everything they said.
These meetings, which went a total of at least 13 hours all-told,
were typical discussions of lawyers, give-and-take. Frankly, like all
lawyers in groups, we interrupted each other; several people would,
I am afraid, talk at once sometimes. But in the inevitable discus-
sion, I think we came to our final views, and that is about it, for
the moment, subject to your questions.
The CHAIRMAN. Let me begin, Judge, and we will impose a 10-
minute ruleand would the clerk keep the clock, please?
Are the procedures you outline in your statement essentially the
same as those you followed last year for the Rehnquist and Scalia
nominations; and if they were not, were there any significant dif-
ferences? For example, you indicated in your letter to this commit-
tee that Judge Bork was interviewed at length on two separate oc-
casions. Is it usual for the committee to interview the nominee
twice?
Judge TYLER. I cannot say that this has always been done. In
fact, I assume it has not always been done. Is that
The CHAIRMAN. Mr. Fiske, you were there before. Can you tell us
if this is
Mr. FISKE. Yes. Well, Senator, I think the basic procedures that
were followed in this investigation were exactly the same as the
ones that were followed with Justice Rehnquist and Judge Scalia.
Each of those, Justice Rehnquist and Judge Scalia, were inter-
viewed once. Judge Bork was interviewed twice. And I think the
explanation for that in part evolves from what Judge Tyler said a
moment ago, about how this process worked.
1186
We had the committee start the investigation on July 2nd. We
did not know at that time what the timetable was going to be for
this committee, so it was sort of a full-court press right from the
beginning.
At the time we met at the ABA Annual Meeting in San Francis-
co, at which time my term as Chairman expired, and Judge Tyler
took over, on August 7th, we had a meeting of the full committee
which lasted approximately 3 hours, at which time it was decided
that, particularly in view of the fact that this committee at that
point had made it clear your hearings were not going to start until
September 15th, we knew there were going to be submissions
coming in from a number of interested groups, the committee de-
cided that it would be intelligent to wait, receive those submissions
so they could be thoroughly reviewed and evaluated, which was
then done. The next meeting was held on August 28th.
In the meantime, Judge Tyler and I and another member of the
committee had interviewed Judge Bork in July. But what hap-
pened between that interview in July and August 28th was that
some additional questions were presented by some of the submis-
sions and by some of the discussions at the meetings, and the com-
mittee concluded that it would be desirable to have a second inter-
view with Judge Bork to follow up and explore some of the ques-
tions that had been raised.
The CHAIRMAN. Can you tell us what any of those additional
questions raised were?
Mr. FISKE. Well, I think that one of them centered on questions
that were raised with respect to the Saturday Night Massacre. I
would say that was the principal focus of the second interview.
The CHAIRMAN. Was there a record or a transcript or a memo-
randum kept of any of these interviews?
Mr. FISKE. Yes.
The CHAIRMAN. Would you be prepared to submit that transcript
to the committee?
Mr. FISKE. I think I should defer to the current chairman.
The CHAIRMAN. Excuse me, Mr. Chairman. Would you?
Judge TYLER. We did, as you say, keep memoranda of the two
interviews of Judge Bork that this committee did, because there
were only three of us who did the interviewing. And I have not fo-
cused on that. I have not got those copies with me. And there were
a number of issues other than the Saturday Night Massacre and its
aftermath.
One of the matters which I am here tonight prepared to turn
over goes back to the earlier interview, as you know, Mr. Chair-
man, and frankly, I have not got those current interviews with me.
And if we could just defer on that
The CHAIRMAN. I would be happy to defer on that. Do you have
the interviewswhen you say "the earlier interview", for the cir-
cuit court of appeals, I assume you are referring.
Judge TYLER. That is correct.
The CHAIRMAN. And that is the memorandum that was written
by Secretary Coleman?
Judge TYLER. Yes. What had happened was, oh, a week or two
ago, I had had a conversation with a man named Mr. Corriea, who
I believe is on the staff of Senator Metzenbaum. At that time, I un-
1187
derstood the focus was on a particular segment. In the meantime, I
had been told by both representatives of the nominee and also by
you, Mr. Chairman, in a letter which I received this past Saturday,
of the transcript of the colloquy between Senator Metzenbaum and
Judge Bork. And it seemed to me, as a result of that, since the
nominee has waived on that, I am going to hand up a segment.
Unfortunately, I did not have help over the weekend, and I only
made two copies, one of which I would like to keep for myself, and
one of which I am going to deliver, since they have asked for it, to
the administration, or those in the administration who are assist-
ing Judge Bork.
The CHAIRMAN. And the third copy is the one you have handed
me?
Judge TYLER. Yes, sir.
And I don't have enough copies for all members.
The CHAIRMAN. Well, I suppose they could all read it. That's a
joke, Allan.
I would ask the staff to prepare copies for the entire committee.
Let me move on in the meantime with what little time I may
have left.
What is the process by which your committee comes to vote on a
Supreme Court nomination? You said you met as a whole, as I un-
derstand it, on four occasions
Judge TYLER. Three occasions.
The CHAIRMAN. Three occasions.
Judge TYLER. Yes, sir.
The CHAIRMAN. And is there a draft report circulated? Is that
how you do it? Maybe you could explain to me how you do it, not
who voted how, but how do you do it?
Judge TYLER. Yes, sir. A draft was circulated several times. I con-
fess to being the initial draftsman, and I got plenty of advice not
only from my former chairman and colleague here this evening,
Robert Fiske, but other members of the committee.
I particularly discussed with those persons who were in the mi-
nority the language which was being placed in there endeavoring
to summarize as accurately as possible, not only the majority views
but the minority views.
As a result of that process, the drafting went on for quite a time.
It startedI think I did my first draft on or about September 9th
or 10th, and frankly, it didn't stop until we delivered it to the com-
mittee yesterday afternoon.
But to answer your main thrust, as I understand it, it went
through a number of drafts and, in substance, it was circularized or
circulated twice.
The CHAIRMAN. Judge, what do the categories mean? As I under-
stand it, there are three categories, only three, for the Supreme
Court that can be voted on.
The CHAIRMAN. One is "well qualified", the other is "not op-
posed", and the other is "not qualified"; is that correct?
Judge TYLER. That is correct, sir.
The CHAIRMAN. What does "not opposed" mean?
Judge TYLER. The not opposed is described to some extent on
page 8, for anyone who has our present rules, or I should better say
1188
guidelines. It doesn't say very much, frankly, with respect to that
category.
It says, "The second category consists of those persons who are
not opposed by the committee. Such a person, while minimally
qualified, is not among the best available for the appointment and
is not endorsed by the committee."
As you know, we had one member who voted that particular
rating. As I understood him, he was not prepared to say that the
nominee was not qualified, but for substantially the same reasons
as we attempted to summarize at the end, as to the minority's
views, he chose to cast his vote for this particular rating.
The CHAIRMAN. Judge, let me ask you another question, because
my time is almost up. I have received the two-minute warning
here.
With the exception of your addition as the chairman, has the
membership of the ABA Standing Committee on the Judiciary
changed since Rehnquist and Scalia?
Judge TYLER. Well, I was one change
The CHAIRMAN. I said other than you.
Judge TYLER. NO, but not as chairman, sir.
The CHAIRMAN. I'm sorry.
Judge TYLER. I came in last year as a representative of the
second circuit, and thus I had a year before I came chairperson.
I don't recall any other new members. Robert Fiske will have to
help me there. Were there any new members other than me last
year after Chief Justice Rehnquist and Justice Scalia?
The CHAIRMAN. It is my understanding there was not, based on
my looking at and my staff looking at the membership of the com-
mittee.
The reason I asked, while you're checking, Mr. Fiske, if that's
true, my understanding was that essentially the same committee,
with the exception of youbecause you were not on that commit-
tee, as I understand it, with Rehnquist and Scaliavoted unani-
mously for "well qualified" for each of the other two Justices. As a
matter of fact, we know they did, at least that's how it was report-
ed to us.
What I am trying to discern here is that, in the case of the ABA
committee, the only other time that we're aware of where the ABA
committee ended up not being unanimous was during the nomina-
tion of Clement Haynsworth in 1969. The ABA committee in that
case it offered a unanimous recommendation that Judge Hayns-
worth was well qualified when it first reported, and only later re-
vised its recommendation to 8-4, when new evidence of financial
conflicts were brought to light. In the Haynsworth case, of course,
the Senate went on to reject the nomination. Even Judge Carswell,
whose comments was later made an issue, received unanimous ap-
proval.
Now, as far as I know, this is the first time in a Supreme Court
nomination where there has ever been a dissent at the time the
ABA issued its initial evaluation. Is that correct, to the best of your
knowledge?
Judge TYLER. Let me start out. I believe there wereI'm not
sure that I understand that they were full-blown dissentsin the
first nomination of Justice Rehnquist as a Justiceis that correct?
1189
Mr. FISKE. I wasn't on the committee, either, at that time, but
my understanding is there were certain members who did not
agree that Justice Rehnquist should receive the highest rating. But
there was no one that voted "not qualified".
The CHAIRMAN. Well, my time is up.
My understanding isand I'm sure my colleagues will correct
me if I'm wrong, and I would like to be corrected if I amis that
never before has there been, on the first recommendation made by
the ABA, a vote cast that said "not qualified".
But my time is up. I will yield to my colleague from South Caro-
lina. We are going to enforce the 10-minute rule.
Judge, I am glad to see you again. We are pleased to have you
with us, and congratulations on your appointment as chairman of
this committee.
Judge TYLER. There are some, Senator, who question my sense of
timing, frankly.
Senator THURMOND. And I'm glad to see you too, Mr. Fiske.
Mr. FISKE. Thank you, Senator.
Senator THURMOND. NOW, the ABA standards of professional
competence, personal integrity and judicial temperament, I'm not
going to take the time now to ask you to define them, but if you
would do that for the record, I would appreciate it. I believe your
manual here contains that, if you could excerpt that.
In your opinion, can each member of the ABA committee decide
for himself or herself how to define those terms?
Judge TYLER. Well, I can assure you that each member has a
copy of the book or manual of the ABA last redrafted in 1982 or
1983 to give as much content as possible to those terms. In this con-
nection, by date of September 28, Senator Metzenbaum wrote me a
letter aboutraising a fair question or two about this, which I will
confess to Senator Metzenbaum I welcomed, not only as a legiti-
mate inquiry from a member of this committee but a chance to
remind us all, every member of the ABA committee, just what we
were talking about when we dealt with these criteria.
I suppose there has to be some acceptance that different people
think differently about these criteria. But I will defend the minori-
ty as well as the majority on the committee by what I observed,
that they tried their best to recognize what those criteria mean.
Senator THURMOND. Judge, is there anything to prevent a
member of the ABA committee from using ideological issues under
the guise of temperament?
Judge TYLER. We tell ourselves and our guidelines say that we
should notand that was part of the thrust of Senator Metz-
enbaum's letter to me, in which I answered him just as I'm answer-
ing you, sirthat we should not consider ideological matters, with
one exception, and that is where there is a pattern of such extreme
ideology, if you will, as to then make an impact on appropriate ju-
dicial temperament of a particular candidate. My understanding is
that that applies not only to a Supreme Court Justice but to judges
on the lower federal courts.
Senator THURMOND. Judge, are there committee rules concerning
the type of individuals to be contacted for information about the
1190
nominee, and how much discretion does the committee member
have as to who he or she contacts?
Judge TYLER. I would say a fair amount of discretion, in my ex-
perience. When we started out, unlike what goes on in the investi-
gation, Senator, with a lower court judge in the federal system,
there was not one person who assumed the primary role in the in-
vestigation. Rather, we divided up tasks. Obviously, there was an
attempt to talk to people who knew Judge Borkfor example, at
Yale Law School and, for example, on his present courtand then
there was an attempt to get around the country in each circuit and
talk to judges, academicians, and practicing lawyers.
In that latter area, sir, I think there is no doubt that there was
considerable discretion to the interviewer. For example, one of my
assignments was to call judges and academicians and lawyers in
my home circuit, the second circuit. I guess I was influenced by
whom I know, whom I considered to be active lawyers, academi-
cians, who would know something about Judge Bork, and judges
particularly on the appellate courts in the three States in my cir-
cuit to the extent I could reach them and, of course, federal appel-
late judges and, to some extent, district judges.
That, therefore, indicates, I think, in fairness to your answer,
that there is some latitude and discretion with each member.
Senator THURMOND. Judge, in your report you mention various
groups commenting on Judge Bork's nomination, such as the
American Civil Liberties Union, the Lawyers Committee for Civil
Rights Under Law, and People for the American Way.
Now, I'm just wondering if there was an imbalance favoring
groups opposed to Judge Bork's nomination and whether the views
of these groups were solicited or unsolicited.
Judge TYLER. Well, it varied. By that I mean most of these sub-
missionsin fact, all of themwhether they were for or against
the candidate, were not solicited by us, although I do think that it's
fair to say that we anticipated that they would be forthcoming.
From what specific groups, I cannot say that we knew in advance
but as time went on submissions came in without request or solici-
tation by us.
They began at or about the time of the first meeting we had in
San Francisco. They started to come in in volume then. As I recall
it, several people called me after I became chairman and asked
whether we would object, and I simply said no. So to that extent, I
guess you could say that we considered whatever was submitted for
whatever it was worth.
Senator THURMOND. Well, was there an imbalance?
Judge TYLER. Well, I'm sure that various members of the com-
mittee were well aware, as we said in this letter, that on a numeri-
cal basis, there was an imbalance. I'm sure there is no doubt in any
of our minds that we at least looked at this materialI suppose
each member looked differently than others for all I know, in
terms of how deep they went.
But they were submitted and circularized to everybody. In other
words, if they came in, one copy, there was care made to see that
every member saw these and he could give such value to those, or
she could, as they saw fit.
1191
Senator THURMOND. Judge, in your report you state that the
committee restricts its views to only a nominee's professional quali-
fications; that is, his professional competence, judicial tempera-
ment, and integrity. Yet in your report, of the various and many
classes of those interviewed, for example, judges, law professors
and lawyers, you referred to a minority of those classes who are
opposed to Judge Bork's nomination on the basis of political or ide-
ological grounds.
Would you tell the committee why this is included in your report
if, in fact, you don't consider these issues?
Judge TYLER. The reason for that, Mr. Chairman, is very simple;
that in the interviewing process, even though if you looked at the
responses, it was quite clearand in many instances, for example,
in the interviews I conducted, lawyers, whether they be judges,
academicians or practicing lawyers, would say to me, "Listen, you
know me and I know you. I cannot say that this man is lacking in
professional competence, intelligence, temperament, and certainly
there is no reason to doubt his integrity at all, but I have to tell
you that, for reasons that don't fit any of that, I am opposed to
him." Some said, "I know that your rules or your guidelines do not
supposedly permit you to base your conclusions on ideological
grounds, but I have known you for many years and I'm not going
to be dishonest and I'm going to tell you that's how I feel."
That happened to a number of people.
Senator THURMOND. Judge, in your letter you discount ideology,
but almost without fail, every criticism indicated by your letter is
really based on ideology. On page 6 you indicate a minority view
opposed to Judge Bork based on judicial temperament, which you
described as "his compassion, open mindedness, his sensitivity to
the rights of women and minority persons or groups and compara-
tively extreme views respecting constitutional principles or their
application, particularly within the ambit of the 14th amendment."
That quite clearly sounds like ideology. Can you give us a specific
example to support any of these charges? For example, when did
Judge Bork evidence a lack of judicial temperament, by showing a
lack of compassion, open-mindedness, toward any party or to any
before him?
Judge TYLER. Well, that is a question that I fully understand, but
let me point out that on page 4 it is stated in the committee's
guidelines that the committee looks to a prospective nominee's
compassion, decisiveness, open-mindedness, sensitivity, courtesy,
patience, freedom from bias, and commitment to equal justice.
Now, those are supposed to come under the heading of "Judicial
Temperament". I will confess to you, Senator, that in my days as a
lawyer and as a federal judge, I always thought temperament
meant when the judge bawled you out without any reason and you
were sore as a boil when you went home and told everybody that
judge has no temperament. But the committee has always, for
many years, as I understand it, operated under this understanding
or this definition I just purported to read to you.
It is my further understanding that each of these persons on our
committee, who ended up voting "not qualified", believed that they
were dealing with judicial temperament not under that old-fash-
1192
ioned understanding I always used to have, but under the defini-
tion that I just read to you rather swiftly.
Senator THURMOND. Then if they cannot point to a specific exam-
ple, it seems they are again basing their criticism on ideology,
which you are not supposed to do under the ABA guidelines.
Judge TYLER. Well, all I can say is, they read everything that the
rest of the committee read; they knew about the interviews; they
purported to know our rules, and they said these were the reasons
which they headed under "judicial temperament".
I think one could say fairly that their doubts or concerns about
Judge Bork's views within the ambit of the 14th amendment had to
do with his writings. I remember that several of the minority did
indicate in my hearing that that seemed to be on their minds.
Now, of course, once again, it is very difficult to say much more
than that. The word "compassion", in my opinion, might better be
"passion". Some of the members felt that there was some debate or
issue as to whether or not Judge Bork approached certain legal
issues with sufficient passion, recognizing our historical roots and
aspirations. To some degree or another, my sense is that all four
who determined to vote the candidate "not qualified" in one way or
other shared these views that we attempted to summarize in our
report.
There is no doubt, as I heard the give and take, particularly in
the three face-to-face meetings, that perhaps two of the persons
who voted not qualified might have been more concerned about the
point we describe here as the nominees sensitivity or lack thereof
to the rights of women and minorities.
But I think it is fair to say that everybody among that group
seem to be concerned about that. They assured me and anybody
who would listen in the debate that they considered that, particu-
larly given this definition on page 4 of our so-called blue book, or
guideline book, part of judicial temperament and not ideology.
Senator THURMOND. Judge, I just have one more question. In a
September 9, 1987, Washington Post article, it was reported that
Senator Biden had sent the ABA Standing Committee on the Fed-
eral Judiciary a letter he had received from Judge James F.
Gordon. In his letter Judge Gordon alleged an improper attempt by
Judge Bork to substitute his own views for the reasoning agreed on
by the other judges on the panel.
Judge Bork has clarified the record on this matter. I wonder,
however, if the ABA Committee considered the Gordon letter
during its deliberations on Judge Bork's nomination? And if so,
was Judge Bork given an opportunity to respond to the Gordon
letter?
The CHAIRMAN. Before you answer that question, Judge, I want
the record to show, and I would like you to speak to it, that letter
was forwarded without any recommendation or inquiry, just for-
warded like I dolike any chairman would when any complaint
that would come in about a prospective nominee would be forward-
ed to the committee without any comment as to what you should
or should not do with it, is that not correct?
Senator THURMOND. I am sure that is correct.
1193
Judge TYLER. That letter was received by me on behalf of the
ABA Committee from Chairman Biden in time for our last meet-
ing. Indeed, I promptly circularized it. But my firm recollection is,
though, that it was in the possession of all of the committee.
We did not talk to Judge Bork about that, because all of the com-
mittee without any exception felt that this matter, accepting Judge
Gordon's recollection as true, was something that did not weigh in
the mix as we saw it. So we did not think it was appropriate to
factor the episode for or against Judge Bork.
Senator THURMOND. SO they did not consider it then in their de-
liberations?
Judge TYLER. Basically, there were several reasons for this. One,
there were a number of us on the committee who are aware of how
these things can happen in 3-judge courts, particularly where, as in
the senior judge Judge Robb, who was the presiding judge, unfortu-
nately died right in the middle of this when Judge Gordonand
Judge Gordon noted this, by the way, quite fairly.
The second point is that these things sometimes happen unwit-
tingly, and therefore enough lawyers on our committee are famil-
iar at least with these kinds of things to not feel, whatever their
other views may be on the candidate, that it was something that
should weigh for or against him at all.
Senator THURMOND. Thank you very much, Judge. Thank you,
Mr. Chairman.
The CHAIRMAN. I want the record to show that for former chairs
of this committee 15 minutes was allowed, but really I am going to
keep to the 10-minute rule now. Okay? Ten minutes.
Senator THURMOND. Well, I guess that is because I have asked so
few questions during this entire hearing.
The CHAIRMAN. That is true. That is true. It is for many, many
good reasons, but that is the end.
The Senator from Vermont?
Senator LEAHY. I would tell the Senator from South Carolina he
is going to let me have only 10 minutes as compared to Senator
Thurmond's 15 minutes because I speak faster. I think that is what
we are going to do.
Senator HEFLIN. At least you can understand him.
Senator LEAHY. Which one of us? [Laughter.]
I went down with Senator Thurmond to his alma mater
The CHAIRMAN. Using your time, Senator.
Senator LEAHY. I understand. I went down with Senator Thur-
mond to his alma mater once to speak at Senator Thurmond's invi-
tation, and he brought along a simultaneous translator for me.
Let me askit is good to see you again, sir.
Judge TYLER. Thank you.
Senator LEAHY. Last year, when your committee reported on the
nomination of Chief Justice Rehnquist, the report indicated that
the committee had interviewed all of Justice Rehnquist's brethren
on the Supreme Court. Did you interview all of Judge Bork's col-
leagues on the circuit court?
Judge TYLER. We certainly made an effort. One or two members
of our committee endeavored to interview them all. My recollection
is that not all eight justices could be reached; most, however, were
reached, and their interviews were reported; yes, sir.
1194
Senator LEAHY. Well, the reason I asked, last year's report on
Justice Rehnquist, in fact the subsequent testimony of the ABA,
applauded now Chief Justice Rehnquist for his collegiality. I see no
reference to that in this report on Judge Bork. Why is that?
Judge TYLER. It may be my fault as the draftsman, the initial
draftsman. I didn't put the word in there. It may be that simple.
Senator LEAHY. Well, the reason I ask is, you know Judge Bork
wrote a dissent this summer from the circuit court decision not to
rehear three cases en bane.
Judge TYLER. Yes.
Senator LEAHY. And he and his fellow dissenters felt that the
cases deserved that treatment because, and I quote: "Each involves
an issue of exceptional importance and each received a panel reso-
lution that we think is clearly wrong and is at the very least
highly dubious." Now a majority of the other judges disagreed.
In fact, five of them joined in an opinion that harshly criticized
Judge Bork's position as follows: "The dissent's clearly wrong and
highly dubious test not only serves no useful purpose in this inter-
mediate appellate judicial context, it does substantial violence to
the collegiality that is indispensable to judicial decision-making.
Collegiality cannot exist if every dissenting judge feels obliged to
lobby his or her colleagues to rehear the case en bane in order to
vindicate that judge's position. Politicking will replace the thought-
ful dialogue that should characterize a court where every judge re-
spects the integrity of his or her colleagues."
That is pretty strong language. And as one who was a practicing
attorney for a number of years and still reads a lot of cases, I can't
think of very many cases where I have seen language that strong
in a circuit court of appeals court where they are referring to an-
other member of that same court, somebody that they are going to
see every single day.
So that is why I asked the question, was there consideration of
this question of collegiality? And if not, why not?
Judge TYLER. Well, I think there was. First of all, let meit
came up that there was publicity here in Washington to some
extent in the public domain about this very matter that you just
alluded to, and my recollection is that the men who did the inter-
viewing of the judges of that court did get into that.
My recollection further is that there wasn't quite the sharpness
or unusual tone to those interviews thereafter. There was mention
of it, however, but they didn't seem to complain, as I recall, much
about collegiality as such in the general sense.
There was some criticism which we took pains to ask Judge Bork
about later at our second interview. One of the judges, as I recall,
on the DC Circuit mentioned a problem of some lateness in filing of
opinions. We looked into that. We questioned Judge Bork about it,
and he said that he had never failed to comply with their particu-
lar lateness rule, and indeed independent investigation indicated
that where there were delays it was because he was waiting for
other opinions.
Senator LEAHY. Well, let me ask you just a little bit about that, if
I might, now that you raised it. There were some statistics pub-
lished in the Legal Times of Washington for the period May 1986
to June 1987 and they said that Judge Bork was the second slowest
1195
judge on the circuit court in rendering opinions he was assigned to
write, second only to Judge Robinson, who had been very, very ill.
So at least you had the questions raised of collegiality, which is
very important on the Supreme Court. I am not suggesting every
judge has to agree with every other one; obviously, they don't. The
question of collegiality is important.
With an increasing workload in the Supreme Court, the ability
to get decisions done, time is a problem. And here we have had this
question raised of collegiality in a published, printed public opin-
ion, and then you have the Legal Times statistics which show that
he is the second slowest in getting opinions written. How satisfied
were you with the answers to the questions in those two areas?
Judge TYLER. AS to the Legal Times report, my sense was that
we were not satisfied that the conclusion reached therein were en-
tirely justified.
Senator LEAHY. That the report was accurate?
Judge TYLER. We were not satisfied that its conclusions were to-
tally justified.
Senator LEAHY. Thank you.
Judge TYLER. AS to the collegiality point, you are certainly right
that collegiality, as far as I know, has always been a consideration
or a concern, if you will, of this committee. But my understanding
of the reports of the men who did the interviewing, that the colle-
giality point didn't seem to measure up in the interviews to the
level of intensity or harshness that that opinion, which you actual-
ly paraphrase as I understand it, did.
Therefore, we decided that within the confessional that maybe
these things sort of worked themselves out and were not quite such
a great problem as it did seem.
Senator LEAHY. Mr. Fiske, was that your opinion, too?
Mr. FISKE. Well, I think essentially yes, Senator.
Senator LEAHY. Did your committee consider a question of back-
log? Did your committee look into the case of Franz v. United
States in which Judge Bork's concurring opinion was filed over a
month after the majority opinion in the case? I note that one only
because it was so late it was filed in a different volume of the Fed-
eral Reporter. Did you look at specific cases?
Judge TYLER. I missedsomebody v. The United States.
Senator LEAHY. FranzF-r-a-n-z.
Judge TYLER. Franz was a case which we were looking at for
quite different reasons, and I don't recall that anybody ever raised
that as a particular example of lateness. We were focusing just in
the normal sense of approaching opinions from clarity, covering all
the issues, legal analysis, and so on.
Senator LEAHY. Thank you. And, Mr. Chairman, thank you. I
have an awful lot more questions. The report, of course, is as
sparse as it can possibly get, and as the one who has to chair most
of the hearings around here, other than this one, of course, for judi-
cial nominees, or have had to this year, I wish there was some way
to have those a lot more detailed.
Judge TYLER. This is not, of course, in the same format, Senator
Leahy.
Senator LEAHY. NO, I am talking about the ones I normally have
to deal with, and, of course, this one. I understand we are going to
1196
have a second go-round and I will have some more questions I
think.
Thank you.
Judge TYLER. Well, I just want to pick up, if I may, because I am
a little confused. This is not in the same format as the one used by
the committee for the lower courts.
Senator LEAHY. I understand. In fact, maybe I didn't say it quite
well enough, I much prefer this as far more detailed. What I am
contrasting it with, I wish there was some way we could do the
same thing on the lower court ones.
The CHAIRMAN. He likes what you did. Right?
We have 60 more minutes, if we were disciplined enough to do it,
and already members are asking about a second round.
Senator LEAHY. I will waive my second round. Sorry.
The CHAIRMAN. NO, no. I am not asking you to waive a second
round. What I am suggesting is that we will go through a first
round and we will make an assessment then whether we are going
to finish this tonightunder no circumstance will we call you back
tomorrow, gentlemen. We will try our best to finish it all tonight,
but I have been sitting in this chair since ten o'clock, with a 50-
minute break, and I am prepared to go till 10:30, but I am not sure
I am prepared to go to 1:30.
But having said that, having wasted 2 minutes, let me now yield
to the Senator from Utah for his 10 minutes.
Senator HATCH. Well, thank you, Mr. Chairman.
First of all, I want to compliment you. I know that this is a
thankless task, it is a lot of work, and, by and large, I think the
American Bar Association does a very good job.
With that said, I would like to ask you some questions about this
job. Now, Judge Tyler, I think that you would agree with me that
any individual who violates the confidentiality strictures of your
committee and leaks information on your private deliberations is
himself lacking the integrity to sit on the committee. Is that right?
Judge TYLER. Well, I certainly think it is a significant problem to
have any member of the committee leak
Senator HATCH. Well, such person is in no position to evaluate
the integrity of others I would say. Now, see, the problem here is
that the day after the ABA vote we not only found out through the
press the vote totals, but who voted for and against and why, which
I thought was an enormous breach of confidentiality.
Add to that the leak about Secretary Coleman's notes of the 1982
inquiry which were in the possession of the ABA panel. So you can
see why I am a little bit upset about that, and I think you must be,
too.
Judge TYLER. There is no doubt it, and it is one of the things that
we have got to do, as soon as our time permits, is to go into this. It
is remarkable but true that during the summer Bob Fiske, when
he was chairman, reminded us at least thrice that I can recall
about the importance of confidentiality. It was then repeated by me
almost immediately, because I was then the chairman and we were
having a meeting which was taking place in my office in New
York. And this is a very distressing problem.
Senator HATCH. Well, it was to me when I saw that show up in
the New York Times and other newspapers. Now what I am asking
1197
is, if you locate and identify the individual, will that person stay on
the committee?
Judge TYLER. Well, if we ever can really be sure who did it, I
think that we are going to have to discuss, not only among our-
selves but with the hierarchy of the ABA, as to just what should be
done. Because, as you say, this is a very uncomfortable position.
Certainly I feel this way. I know Bob Fiske well enough to know he
feels this way. I can't imagine anybody else doesn't.
Senator HATCH. I know you both feel that way, and I think any-
body thinking about it feels that way. And you have to wonder why
do we have people like this judging the integrity of others.
Judge Tyler, one of the members of your committee, Mr. Jerry
Shestack, was quoted on two occasions as being publicly critical of
the judicial selection process of this administration. At the annual
conference of the National Judges Association, he criticized the cal-
iber of this administration's nominees, and, of course, I was on this
program doing a television series entitled "The Constitution, That
Delicate Balance," produced by Fred Friendly.
He discussed the number of not-qualified appointments that he
felt has come from this administration. Now my question is, can an
individual who has been publicly quoted to this effect be expected
to bring a neutral and disinterested approach to his evaluation of
this administration's candidates?
Judge TYLER. Well, I must say this is the first time I have heard
that he or anyone else has been quoted as saying that on the com-
mittee publicly, and I understand that is what
Senator HATCH. It is a serious problem. If those allegations are
true, that is serious, isn't it?
Judge TYLER. And I would find it particularly puzzling because
my recollection is that recently in response to reports of his, for ex-
ample, this committee has found a number of candidates of this ad-
ministration well qualified.
Senator HATCH. That is right. Well, keep in mind Bob Bork was
found to be by your committee exceptionally well qualified just 5
years before, and unanimously found to be so.
Judge TYLER. Well, actually it is close to 6 years ago that the
committee did the work. Yes.
Senator HATCH. And most people would agree that there is noth-
ing in his judicial record that would cause anybody to change that.
But all of a sudden you show up with four people voting not quali-
fied.
For example, did you consider conflicts of interest to be serving
on the election committee of a Senator who is publicly opposed to
this nomination who serves on your committee?
Judge TYLER. That came out in the press.
Senator HATCH. Yes, it did.
Judge TYLER. And I had occasion to ask the member about that.
He told me that he is a member of a lawyers committee, which in
fact is presided over, as I understand itthe chairperson is a
member of one of our large firms in New York City.
Senator HATCH. I understand that. But did he disclose that to
you prior to voting as a member of this committee?
Judge TYLER. NO.
Senator HATCH. Well, do you not think that is a problem?
86-974 0 - 89 - 40
1198
Judge TYLER. NO, I really do not, unless there are some overt
signs that he is pushing some political agenda. The reason, if I may
be permitted to finish, Senator, is this
Senator HATCH. Surely.
Judge TYLER [continuing]. First of all, as I am sure you know,
private lawyers do many political things, support different political
candidates. And this has been true of members, as I understand it,
of this committee for many years. Therefore, I do not think, subject
to overt evidence that somebody is using this in some way or trying
to influence the deliberations of the committee, that such activity
is a disqualification I assume same ABA committee members occa-
sionally might
Senator HATCH. Sure.
Judge TYLER [continuing]. Would support candidates. Therefore,
there has never, as far as I know, been any rule that you cannot do
this.
Basically, what the ABA has been doing, as I understand it, is
leaving it up to the sound good sense and decency of each member
to put aside this kind of activity in his committee work.
Senator HATCH. Well, you can see why I am upset because if
these comments were made and then he also is a member of some
committee supporting somebody who is opposed to the nomination
and then add to that another conflict of interest by having a law
partner who was hired by the American Civil Liberties Union to
lobby against the Bork nomination. Now those are things that kind
of bother me. I think they would bother most anybody.
Let me give you some
Judge TYLER. Well, I think in these large firms, that is some-
thing that is quite likely to happen. I do not, for example, in my
firm knowand I never would normally find out or askbut I
assume there may be people in my firm who are interested in the
political campaigns of one or more Senators or whatever. And I do
not think that is a problem unless I somehow use that to influence
or attempt to influence myself or fellow committee members on
any particular candidate.
Senator HATCH. Judge, my time is running out. So I will just
make statements with regard to the rest of this, rather than try
and ask questions, or I will have to have a second round.
In looking at the credentials of individual members of your com-
mittee, I see at least three members who have been pretty active in
parts of the political process and on behalf of politically liberal
causes.
I see one individual who was offered an appointment to the Cali-
fornia Supreme Court by Governor Jerry Brown, a number of
whose candidates of course were recalled by the State electorate
last year; Sam Williams of the ninth circuit.
I see another individual who belongs to the Lawyers Committee
for Civil Rights under Laws and the Chicago Council of Lawyers
that opposed Judge Manion; that is Joan Hall of the seventh cir-
cuit, and another who belongs to the American Civil Liberties
Union, Mr. Shestack.
And all of these organizations have bitterly opposed Judge Bork,
as you know. And what bothers a lot of people is are there any con-
servative organizations or is there a balance in this area?
1199
Now let me just go a little bit further. The fourth member, of
course, is John Lane. And, as I recall, he was removed from the
committee before and then got back on to the committee. And one
of the reasons he was removed was because of using ideology in the
judgment ofam I wrong on that, Mr. Fiske, on using ideology on
the judgment?
Judge FISKE. Yes. I think that is wrong, Senator.
Senator HATCH. That is my understanding. Why was he re-
moved? Just tell me and I will accept it.
Judge FISKE. Well, the decision was not mine. The decision was
made by President Thomas. And he was not removed. Mr. Lane,
John Lane had served a 3-year term. That term has expired, and
the question was whether he would be reappointed for another 3-
year term, and Eugene Thomas decided not to do that.
But I know from having worked with John Lane as Chairman
that John Lane is one of the most conscientious and a very strong
member of this committee and, working closely with him on every
one of his investigations, I saw no instance in which he had let
matters of ideology affect his judgment. So I think that is really,
with all due respect, not a proper characterization of the situation.
Senator HATCH. Well, I am glad to be corrected. We were told
otherwise by others.
Judge TYLER. By the way, Senator Hatch, I better confess, if you
do not already know it, that until July I was the cochair of the
Lawyers Committee for Civil Rights under Law, which rendered a
report to us, as you know.
I specifically, anticipating my becoming involved in all of this,
had nothing whatsoever of course to do with their submission. But
I certainly did not hide this information from my fellow committee
members. I did not hide from themthey all laughed at me be-
cause they knew it alreadythat I served for two years in the Jus-
tice Department at the time when Robert H. Bork was Solicitor
General.
I think what this indicates isand as Mr. Robert Fiske has
saidthat Presidents of the ABA makes these appointments in
part on the basis that the lawyers are active in community and
public affairs. I suppose they do consult with the existing chairper-
son. I do not know that because I have never been the chairperson
for that long. But usually there are men and women who are very
active in affairs, including political affairs in their home cities,
states or even on the federal level.
I remember when I was the Deputy Attorney General of the
United States, the chairman of this committee was a distinguished
lawyer from San Francisco, whom many of you know, Warren
Christopher. Warren Christopher I had reason to believe then and
now was in a different political party than I, and I always had the
utmost confidence in him, and everything that he said or did was
his bond.
It seems to me that that is the tradition that this committee
ought to follow even when they are active in various matters, as
many lawyers are.
Senator HATCH. I agree. My time is up.
Let me just say, Mr. Chairman, in closing, that I have a lot of
other questions, but I think I will just waive those. I think that
1200
others like you should have resigned from these committees that
are actively opposing this Judge. I think others like you should not
be affiliated with committees that may be questionable with regard
to their high fidelity to doing this job.
And I have to say that, even though maybe close to six years has
expired since Judge Robert Bork was givenor then Mr. Robert
Bork was given an exceptionally well-qualified, that when it comes
down to the ratings by five of them in this matter, at least four, it
looks to meand I do not see how anybody can draw another con-
clusionthat at least four of them decided this basically for politi-
cal reasons.
I think that is wrong. And I find a lot of problems with that, and
I know that you have had some trouble handling the questions
here this evening with regard to some of the reasoning that was
used to all of a sudden find this man, who is eminently well-quali-
fied, to be not qualified.
Judge TYLER. Well, I can assure you, Senator Hatch, that the ma-
jority did not find
Senator HATCH. I agree with that.
Judge TYLER [continuing]. Their position reasonable. That I
know. But, on the other hand, I want to defend those four because,
as far as I could see, they struggled along in the discussions with
us. I believe them when they assured us that they were proceeding
in good faith in voting their conscience.
It may well be that I have to concede, as I assume everybody in
this room has to concede, that you cannot reach inside a person's
mind and know exactly or calibrate exactly what he was thinking
when he voted. But I do want to defend the minorityand I am
sincere about this. And I really believe that whoever was on the
majority would probably agree that this is so, that they did try
their very best to evaluate all of this evidence.
And there was a great deal more, I believe, from everything I
have been able to learn that has happened before in modern times
in terms of any candidate, partly because of the long lead time.
Back in the years past there has not been that much lead time for
this committee to do their work. There were many differences.
I heard Bill Coleman, whom I happen to regard as a very careful
lawyer, say this morning that standards and considerations for a
Supreme Court nominee differ from those for lower court judges.
That is fair comment. There are distinctions, I think, as to what
happened, and probably should happen in terms of working on a
potential nominee to the Supreme Court of the United States, as
opposed to U.S. circuit judge.
So I really do not agree with you in all respect that these people
surely did nothing more than exercise some sort of political or ideo-
logical judgment. They struggled very hard.
I think it is important to note that no one of these people with
the one exception noted in our footnote had any question as to
Judge Bork's intellectual capacity, the magnificent public service
he has rendered, and his integrity never was questioned.
It was stressed by two of the minority members, if I may call
them that, or the dissenters or the persons who voted not qualified,
they insisted that it be understood that at no point had they ever
1201
seen any evidence that Judge Bork was a racist or anything like
that.
Senator HATCH. That is right.
Judge TYLER. They stressed that.
Senator HATCH. I am glad to hear that, I will tell you.
Judge TYLER. I have to insist on their behalf.
Senator HATCH. What about the other two?
Judge TYLER. They agreed. It is just a matter that two people in-
sisted in the discussions, as I recall them, that this was so, and the
other two agreed. I do not think there was any doubt on that.
The CHAIRMAN. We are now over 15 minutes.
Let me ask you one question. Do you doubt the integrity of any
one of the members of your committee, any one?
Judge TYLER. I cannot say that there was any basis for me to
doubt their good faith or integrity in coming to the vote they did.
Whether or not I agreed with them is beside the point.
The CHAIRMAN. That is really not the question, and I think you
acknowledged that.
Mr. Fiske, do you have any doubt about
Mr. FISKE. NO.
The CHAIRMAN [continuing]. The integrity with which the way
any of the five people who did not vote well qualified, including the
one not opposed and the four apparently you tell us who voted not
qualified? Do you doubt at all the integrity with which they arrived
at their decision?
Mr. FISKE. NO. I think as Judge Tyler said, they were conscientious
and acted in good faith.
Senator from Ohio.
Senator METZENBAUM. Judge Tyler and Mr. Fiske, let me first
tell you that it is with a deep sense of embarrassment that I heard
my colleague impugn the integrity of members of your committee.
I am sure the hour is late; he may be tired, and maybe for that
reason he saw fit to do so.
How he would know which members of the committee voted
which way is beyond my comprehension. This Senator does not
know, and I certainly would not impugn the integrity of those who
voted in the majority, even though I may not have arrived at that
same conclusion myself.
To me it is overwhelmingly evident that there was something dif-
ferent about Judge Bork. Justice Rehnquist twice, Justice Scalia,
Justice O'Connor, Justice Stevens, Justice Blackmun, Justice
Powell, Justice Marshall, Justice Brennan, Justice Stewart, Justice
Goldberg, Justice White, Justice Burger, Justice Fortas, Justice
Harlan, every one a unanimous well-qualified.
Now nobody questioned the integrity of the people who voted
well-qualified for those people. And I must say to you that I take a
slow burn when I hear the integrity of some who came to the con-
clusion to vote against him.
Let me point out to my colleague that, if you read the report, you
will find that the ABA had interviews with judges and one group
rated him only qualified because of express concerns about his judi-
cial temperament, in other words, his compassion, his sensitivity to
1202
concerns of women and minority groups, and possible lack of open-
mindedness.
A few considered the nominee unqualified, despite recognition of
his high professional capabilities and intellect, because of their per-
ception that his political and ideological views disqualified him.
And then the report talks about the typical views of that group,
that he would split the country on many critical issues, does not
have a well-rounded view of the critical constitutional issues. And
my concern is that he would vote to reverse important precedent
on first amendment church, State and abortion issues.
Those were judges that interviewed, not members of the commit-
tee. Then they interviewed deans and professors of law. Of these,
the smaller group that deemed him only qualified expressed con-
cerns about either his philosophical or political views or his judicial
temperament, in other words, compassion, open-mindedness, sensi-
tivity to concerns of women and minority groups.
The remainder opposed to his nomination said they had concerns
about his judicial temperament or ideology or were opposed on un-
specified grounds. And then they talked with 150 lawyers, and the
minority of that group considered his integrity and intellectual at-
tainment sufficient to view Bork as qualified, but concluded that he
should not be confirmed because of their concerns about his per-
ceived ideological or political views.
Another group objected to his nomination because of concerns
about his legal analysis or his regard for precedents. Still another
small group objected to his nomination without expressing specific
grounds.
Then they interviewed a survey of Judge Bork's opinions. And
several of the professors, while sharing a positive assessment of his
opinions overall, expressed concerns that he sometimes reached out
to decide issues beyond what the facts of the particular case called
for, and that he sometimes displayed an unwillingness to see the
full complexity of an opposing position.
One professor also found a tendency to substitute political argu-
ments for legal scholarship in several of Judge Bork's opinions.
That professor felt these problems were of sufficient magnitude to
compel withholding a positive evaluation. And it goes on.
When someone suggests that four politically-minded members of
the committee arrived at that conclusion, or five, I must tell you it
just does not do this committee well. It does not speak well for us.
Now Judge Tyler, your letter includes a statement that one
member of the committee expressed concern that there have been
inconsistent and possibly misleading recollections of the chronology
of the Saturday Night Massacre expressed by the nominee in earli-
er testimony before the Senate Judiciary Committee and to mem-
bers of our committee in 1982 and recently.
Would you tell us as fully as possible the concerns expressed by
that member of the committee?
Judge TYLER. Yes, Senator, let me try. First of all, it was this
member's submission that the sentence, which in substance in the
1981 report of this committee uses the word "immediately" in the
context
Senator LEAHY. I am sorry. Which uses the word what?
1203
Judge TYLER. "Immediately" in the context of when Judge Bork
sought to obtain a special prosecutor, who as we all know turned
out to be Leon Jaworski, the member felt that this was not quite
true because it was later than that weekend when the search for
the special prosecutor started.
Second
Senator METZENBAUM. That member was right according to Mr.
Coleman's statement. Mr. Coleman reports that, based on Mr.
Bork's conversation with him when he was up for circuit court of
appeals, "He also said that he immediately started the search for a
new special prosecutor."
Judge TYLER. That is the sentence.
Senator METZENBAUM. That is the sentence.
Judge TYLER. That is the sentence. Now, of course, we do not
knowand we have no reason to believethat that is an exact
quote. But this bothered this member.
Second of all, he was concerned, as I recall, about the decision of
Judge Bork as Acting Attorney General to rescind what in some-
what simplistic terms I will refer to the Special Prosecutor regula-
tion of the Department of Justice.
Now he alsoand here I must say I have difficulty in reporting
to you with precision what he really meantbut he had the view
apparentlyand he produced copies of contemporaneous newspa-
per articles having to do with what was going on at the time, and I
believe he felt that Judge Bork's remarks to William Coleman, for
example, and the latter's investigation were not quite correct.
Senator METZENBAUM. AS a matter of fact, Judge Bork in answer
to my question confirms that it was not correct, because I asked
Judge Bork "As a matter of fact, you actually ordered that the Jus-
tice Department itself take over the investigation, as I think you
have just indicated, and the decision to appoint a new special pros-
ecutor was made by the President several days later only after
widespread public criticism. Is that not correct?" Judge Bork said,
"Senator, it is entirely correct, but let me tell you how that hap-
pened."
So that Judge Bork himself said it was not immediate.
Judge TYLER. That is right. And, of course, going back to the
Chairman's questions initially of Mr. Fiske and me and, as Mr.
Fiske says, this was one of the issues that led us to the second
interview.
As I recall Judge Bork's response to us in that second interview,
meaning by "us" Mr. Fiske, another member of our committee, a
man named Bierbauer, and myself was just essentially as you de-
scribed it in your colloquy recently with the candidate.
Senator METZENBAUM. Last week, in fact, I asked Judge Bork the
following:
You had no guarantee from President Nixon at the time he fired Mr. Cox that
there would even be another special prosecutor. Is it not a fact that the decision to
appoint a new special prosecutor was not made until several days later, after the
President had provoked a fire storm of controversy across the country?
And Bork answered:
That is right. Initially, we intended to leave the special prosecution force intact,
but not to appoint a new special prosecutor, and they would go under Mr. Ruth and
Mr. Lacovara as before, but we did not initially contemplate a new special prosecu-
1204
tor until we saw that it was necessary because the American people would not be
mollified without one.
In other words, Judge Bork is saying at the time Mr. Cox was
fired, the assumption was that there would not be a new special
prosecutor. And yet the fact is he did say to Mr. Coleman some-
thing to the contrary.
Now there is another area that I would like to inquire of you.
First of all, I would like to ask you. You have stated that you have
notes of your recent interviews with Judge Bork on this issue.
Could you furnish us those interview notes that were more recently
made?
Judge TYLER. Excuse me, Senator, 1 minute.
Senator, as I started with the colloquy with the Chairman at the
beginning, I would be gladwe would be gladforgive me for
using the word "I". We would be glad to do this, but I do think it
would be helpful if we could get Judge Bork's waiver, which I
assume he will
Senator METZENBAUM. The Chairman will obtain that on behalf
of the committee, I am certain.
Judge TYLER. And there are portions of these interviews which
deal with this subject, which we will then be glad to turn over.
Senator METZENBAUM. Thank you. I assume the Chair will be
able to do that. I think Judge Bork has been cooperative along that
line.
Judge TYLER. Yes.
Senator METZENBAUM. Let me go into one other subject. I have
others, but I think my time will run out.
Another issue concerns whether Judge Bork assured the Water-
gate investigators that they would have the right to continue to go
after President Nixon's tape recordings even though Mr. Cox had
been fired for doing precisely that.
Last week I asked Judge Bork the following:
In your interview with the ABA in connection with your nomination in 1982, did
you tell Mr. Coleman that you guaranteed Mr. Cox Deputies they would have
access to the tapes?
He answered:
I do not know. All I told themand I suppose what I told Mr. Colemanis that I
guaranteed they would have a chance to go for the tapes in court or the evidence in
court, including the tapes.
Do you have any notes or memorandum reflecting Judge Bork's
statements to the ABA on this issue? And if you do, would they be
furnished to us if we had Judge Bork's waiver?
Judge TYLER. There is nothing other than what we have already
furnished.
Senator METZENBAUM. I see.
Judge TYLER. Notes to me, Senator Metzenbaum, mean handwrit-
ten notes of the interviewer. We do not have any such thing. We
looked for those.
Senator METZENBAUM. Mr. Chairman, I have additional questions
but I think my time has expired.
The CHAIRMAN. Let me say to everyone, the hour is getting late.
I hope we will be very careful about how we use people's names
and speak about anyone from Judge Bork to members of the com-
1205
mittee because, as I said, it is late, and I think we should be care-
ful.
Senator Simpson.
Senator SIMPSON. Were you worried about me, Mr. Chairman?
The CHAIRMAN. NO, no. I was worried about all of us.
Senator SIMPSON. Gentlemen, it is good to have you here. I met
many members of the bar. I was a member of the American Bar
for many years. We count on you here. When our people do not get
confirmed, we raise a lot of hack about you, and when our people
do, we think you are the most noble outfit in America.
You know, just quickly, I just do not know how we can milk any
more plasma out of the twitching corpse of firing Archibald Cox. I
mean that has got to be the driest cadaver left in the whole city of
Washington, DC.
Twice you hammered him flat and had every opportunity when
he was up for Solicitor General and then again in 1982 and it all
went a glimmering. Now to think it has anything nowthis issue
is the quintessential irrelevancy of our time. That is my comment
on the Watergate caper. It all came out the way the American
people wanted it, and it showed the strength of our Constitution
and our country.
What concerns me in reading your letter, in talking about integ-
rityand that is all attorneys have; that is all we have here. That
is the currency of this place. If you lose that, you are gone. We all,
we are left or right or whatever we are, but all we have is our in-
tegrity.
So here you are with your rules of how you select, and here you
have when you pick a district court judge, you say that "we dp not
investigate the prospective nominee's political or ideology philoso-
phy except to the extent that extreme views"that is the word
"on such matters might bear upon judicial temperament or integri-
ty", unquote.
Then when you are doing the Supreme Court, all it says is
"Highest standards of professional competence, judicial tempera-
ment, and integrity", and that other part is left off. It is not even
there. That is a stunning little difference there. You leave off the
exclusion.
Then in your letter to us of September 21st, after you have said
almost really haughtily on the first page, "Consistent with its long-
standing tradition, the committee's investigation did not coverdid
not coverJudge Bork's political or ideological philosophy except
to the extent that such matters might bear on judicial tempera-
ment or integrity."
You had no ability to go to that exception, number one, under
your rules. But worse, then on page 4on page 3 of your letter,
what do you happen to talk about in your interviews with judges?
You talk about "Some who said that his political and ideological
views disqualified him in their minds."
Well, if that first part means anything, who cares? Then going
down further in that letter, you talk again aboutthis is page 3
"Their perception that his political and ideological views disquali-
fied him." Who cares? It should not be any part of this procedure.
You say that. I do not say it.
1206
Down at the bottom is a footnote, "Not qualified solely because of
political views or ideology", which are not considered by the com-
mittee but another lick you got in there.
Then go to page 4 and you get another lick in in the second para-
graph, "The remainder opposed to his nomination cited concerns
about his judicial temperament or ideology or were opposed on un-
specified grounds." That is the third lick.
Then you take a fourth lick on page 4 one more time, "Still an-
other group objected to him, but another group objected on ideolog-
ical or political views."
Now really, gentlemen of the bar and fellows, if what you said on
the first page is true, you did not even have to mention that. It had
nothing to do with this selection process.
And then you talk about what a remarkable man he is and so
on. Then you come over to thatthat is a real statement on page
6, "Submissions to the Committee on Judge Bork from other
groups." You have got the ACLU, the National Women's Bar Asso-
ciation. I do not know who is a member of that, except I assume it
is women.
I can tell you that they had an interesting trial with the Judici-
ary Committee. They were objecting to one of the nominees on the
basis that he was a master Mason. How about that one? Everybody
dropped that like a hotcake. We approved that guy 98 to zip about
2 months after that.
I noticed on the letterhead there are no men in the National
Women's Bar Association. So I assume it must be a sexist organiza-
tion of some type. There are no men on it whatsoever, and their
total contribution to the effort before our committee in the last few
weeks has been that Judge Sentelle was a master Mason and thus
unqualified to serve as a federal district court judge.
I am not going to put much credibility there, but I am sure they
furnished you the whole load, along with the other groups that are
listed here, the AFL-CIO Executive Council, Lawyers Committee
for Civil Rights, the NAACP Defense Educational Fund, Public
Citizens Litigation Group, and People for the American Way.
I do not think I see any other group from the, quote, "other side"
there, and I will leave it at that. But I am sure that you got your
information about the other side from some source.
But when we are talking about integrity and when I talk about it
as a member of the bar, I wonder about that. That puzzles me.
But here is my question, because I do not have much time, and I
hope if you come back later, we can discuss these things further.
I have been trying to determine how you could do this in 1982
and give the man a rating of exceptionally well-qualified, and then
this time, go through this posturing at least on behalf of some of
the members of the your committee.
And I noticed one of the members of your committee on the let-
terhead, Mr. John Elam, was the subject of some kind of an exami-
nation on a judge who was from Ohio, at one time a judicial nomi-
nee James L. Graham. He was given a bad rating, about the lowest
you can get from your group. He went on the bench. He is a re-
spected member of the bench. And it was found in the examination
later, because nobody could figure how that happened, but there
were allegations that your committee examined this man's beliefs
1207
and, in fact, a Mr. John Elam, who is now a member of your com-
mittee, questions Judge Graham about his fundamental, his Chris-
tian beliefs. That is a documented thing from the legal publication,
and I will furnish you that.
If that is true, that is certainly disturbing. But, in any event, I
am trying to determine why the difference between Judge Scalia
and Judge Bork. It seems to me we could get really close to the
meat here on the bone.
Both were, quote, "exceptionally well-qualified" when they went
to the circuit court. Is there any question about that? Both have
similar government academic ties and backgrounds. Your decision
as to "exceptionally well-qualified" on Bork was unanimous. Both
are conservatives without any question. Both have written and
spoken on legal issues.
Yet Judge Scalia received a positive and unanimous ABA report
for the United States Supreme Court, but Bork has not. My ques-
tion or questions are two. What did Scalia do since 1982 that was
better? And what did Bork do since 1982 that was worse?
Judge TYLER. YOU realize, Senator, that you are putting this
question to a gentleman who also served with Scalia, Justice Scalia
in the Department of Justice. You realize also, I assume, that you
have raised really some other questions, but you say there are only
two, and let me try to cope with them.
You realize that there are a number of members of the majority
of this committee who undoubtedly went through the same reason-
ing process you swiftly but fairly articulated.
The only thing I can say is that maybe timing has a lot to do
with this. Maybe it has to do with the change in the committee.
Maybe it has to do with changes in the process which we followed
here because of the time, et cetera, that we had to investigate, as
well as the timing in this year of our Lord 1987 as opposed to 1986.
I cannot begin to be sure of exact answers to those, but I pose
those as perhaps explaining in part. I listened to part of William
Coleman this morning. I accept pretty much what he said as being
a fair attempt to answer essentially that question you posed.
But I have no doubt that a good many of the majority here had
such questions as you have just posed here this evening on their
minds when they arrived at the determination they did.
That is about all I can say, frankly, from what I know.
Senator SIMPSON. But you did say, did you not, when you were
speakingand my time has expiredthat, as you visited, as we do
lawyer with lawyer and so ondid I hear you say in your earlier
testimony that someone of the committee said to you or something
about the fact that they would have to reallycould not avoid
looking at him upon ideological or political grounds? Did you say
that?
Judge TYLER. I do not think I said that. And if I did, I should not
have.
Senator SIMPSON. NO. I thought I heard something said in the
give and take in the discussion that somebody said, "Well, I cannot
get that out of the discussion", or something. Was that not correct?
Judge TYLER. NO. I assure you though that it should be said that
fourteen people did not agree with the one person who raised ques-
tions as to his integrity. They flatly did not agree at all.
1208
Senator from Alabama.
Senator HEFLIN. We are delighted to see you here, Judge Fiske. I
might say that you two gentlemen are both distinguished. Judge
Tyler is a former District Court Judge in the Southern District of
New York, and I believe you served also as Deputy Attorney Gen-
eral with President Ford.
I believe Mr. Fiske was also a U.S. Attorney for the Southern
District of New York. When the Iran Contra Committeethey
talked to him very seriously about being the chief counsel for the
committee, but he was unable to consider it on the basis of the fact
he had a lawsuit. And now I see that that lawsuit got settled.
Mr. FISKE. The lawsuit got settled 2 weeks after that, Senator.
Senator HEFLIN. TWO weeks after that. Well, we are delighted to
see such two distinguished members of the New York Bar, and I
might say you have a very distinguished member of the bar of Ala-
bama, Mr. Roland Nachman, on your committee, who I have great
admiration for.
Judge TYLER. He and Fiske went to school together, Judge. You
may know that too.
Senator HEFLIN. Well, I tried a lawsuit one time against him and
I won it. Of course, he was a Harvard graduate. But the juryI
had a country jury at that time. He kids me about that still.
But looking at your various criteria, certainly the one that goes
into temperament as to the prospective nominee's compassion, deci-
siveness, open-mindedness, sensitivity, courtesy, patience, freedom
from bias, commitment to equal justice, among other factors, and I
believe Judge Coleman quoted a portion of the evaluation criteria,
saying "The significant range of complexities of the issues consid-
ered by the Supreme Court, the importance of the underlying soci-
etal problems, and the need to mediate between tradition and
change".
So you have got some rather broad language that a person could
interpret in this ideology, I suppose, if he wanted to within that
language and within the rules.
I want to ask you: Was any inquiry made about whether or not
Judge Bork as an attorney did any pro bono work? And if so, what
were the findings pertaining to that?
Judge TYLER. Judge, I cannot say that I recall that anybody fo-
cused specificallyin other words, somebody had the assigned task.
I think though that we learned in the course of the work, that he
had done almost none or very little when he was at the Yale Law
School.
I do not recall that this was particularly a big issue with the
committee as a whole or any of its parts, particularly since we all
felt, that is all shading of our opinions felt that here was a man
that had indulged in distinguished public service for so many years
that it would be a little bit peculiar to suddenly say that if he did
not do a pro bono job, as so many professors do, as you know, at a
place like Yale Law School, it would look kind of silly.
I think that was about the way we came out.
Senator HEFLIN. He, of course, says that he did none in regards
to his law school or his law practice. I am not sure whether or not
1209
that is an item that goes to sensitivity as to temperament or not. I
suppose it is up to every individual lawyer as to whether or not he
does that type of work.
Some law firms encourage it and some do not. So I am not sure. I
am just interested to see whether the committee did go into that.
Judge TYLER. That raises a good question. I have been telling my
wife that service on this committee is pro bono, and she is not con-
vinced. I do not know why, but
Senator HEFLIN. Well, I would say that what you are doing here
is pro bono work, certainly in a sense.
I am a little concerned about Judge Gordon and the fact that you
did not look into it. I suppose that maybe it came at a time when
you had three meetings and you came to the last meeting.
But in one of the paragraphs of his letter, he says, "In sum, I
now recall Judge Bork's action by way of changing his original po-
sition unknown to Judge Robb and me. Bork's delay in preparing
his so-called majority opinion until late in 1982; (c) Bork's failure to
dispatch his opinion with some explanatory cover letter; (d) my ab-
sence as a junior judge in Kentucky. Judge Robb's illness from
cancer from which he subsequently died, and a creation of a time
of essence situation.
I can understand certainly that these things happen. But I
happen to know Judge Gordon and I know he is a very fine individ-
ual, and obviously they thought well of him on the court of ap-
peals, and requested him a number of times to come and sit on
panels of three.
I am a little bit surprised that your committee did not get into
that.
Judge TYLER. Well, as I said, we did not question Judge Bork. We
accepted Judge Gordon's recollection, of course. I do not thinkwe
got into it but what I tried to convey was that we did not think
that because of the possibilities of what could happen, particularly
with the untimely death of the senior judge on the panel and with
this, one of the first of the cases of Judge Bork when he went on
the bench, that in the totality of things that it weighed that much.
Now perhaps we are wrong.
Senator HEFLIN. Well, I gather you did not talk to Judge Gordon
either.
Judge TYLER. NO, because I know Judge Gordon slightly, for ex-
ample, and I am like you. I do not mean to say I am a friend of his
or anything, but I remember at the Federal Judicial Center when I
was on the board there, I think he came in and he is a fine person.
We did not see any reason to question what he told us, as I under-
stood it. It was just that we did not think that on balance this was
serious, particularly since it happens once in a while in any event
with the best of circumstances.
Senator HEFLIN. Well, that is a matter of record and I suppose
an interpretation of the tenor of the charge of how you interpret it.
I also understand that the entirety of Judge Bork's non-judicial
writings, both scholarly and informal, were collected and summa-
rized and reviewed by the committee members. Did the committee
have an outside group to summarize the material or did the com-
mittee do it itself?
1210
Judge TYLER. Yes. The articles, they were circularized very early
in the work. Our chairman at the time, my colleague Robert Fiske
saw to it that the articles in toto were circularized.
Of course, a number of us have already seen those articles in
other connections. I have no doubt that the committee familiarized
themselves once again even if they had read them before, but to
answer your question we did not go to any professors or anybody
like that to go into them.
Senator HEFLIN. Well, did any of the individuals reviewing Judge
Bork's writings raise any concerns that his views had fluctuated
over the years?
Judge TYLER. What we started out with, Judge, was in July we
kept getting information to the effect that his problem was inflexi-
bility or rigidity. And we never got into this changing so much as
your committee has in your last 10 days or so in your work; our
focus was because of what we were hearing from time to time was
quite the other way.
The question was: Was he too rigid? Did he have an a priori
theory of an approach to particularly constitutional law problems,
which he would try to take each case and fit into this somewhat
inflexible formula or a priori approach?
It seems to me that your committee now has heard more on the
other side, that there have been changes. Now, of course, we were
all aware that he had apparently in the ensuing years recanted in
some substantial part, at least, with respect to the Public Accom-
modations article of 1963, the Indiana Law Review on First Amend-
ment Problems of 1961 and so on.
We were aware of that and, indeed, we asked him about that in
our early interview, particularly, as I recall it. And more or less,
what happened is what I recall his testimony was before your com-
mittee here in these important hearings.
Mr. FISKE. I think, Senator, there was one member of the com-
mittee also that raised the question of why Judge Bork had not ex-
pressed a recantation of those two views prior to the time that he
was up for confirmation as Solicitor General.
Senator HEFLIN. Well, his writings do not reflect much change. It
is, of course, his overall testimony at the committee hearings and
the Solicitor Generalship hearings, the committee hearings of the
confirmation process for the court of appeals and here. Well, that
is just an observation that I make as to your review, and what you
stated about the writings.
Judge TYLER. NO, I understand what you are saying. It may well
be that we did not air this as thoroughly as you already have in
your deliberations and your hearings to date simply because of the
start that we made on the other end. But I do not think that there
is any doubt that people thought about this and perhaps were con-
cerned about it.
It certainly was part of what we thought we should look at and
did look at.
Senator HEFLIN. That is all.
The CHAIRMAN. Senator from Iowa, Senator Grassley.
I note on page 2 of the ABA's letter to our committee, that the
ABA had a law professor review Judge Bork's nonjudicial antitrust
1211
writings. Could you tell me who that professor was, what his or her
background is, and their history with the ABA?
Judge TYLER. If I may defer, Senator Grassley, to my predeces-
sor, that was started, as I recall, very early.
Mr. FISKE. Well, there were two reviews, Senator Grassley. All
of Judge Bork's judicial opinions were reviewed by a group of pro-
fessors at the University of Michigan Law School.
Senator GRASSLEY. I read that in your letter as well.
Mr. FISKE. Yes.
Senator GRASSLEY. I do not question that. But is not the professor
mentioned in number five on page 2 still a different person?
Mr. FISKE. I think that may refer actually to one professor, I be-
lieve, at the University of Connecticut Law School that Judge
Tyler spoke to.
Judge TYLER. I am sorry. That is my fault. That is true. There
was a professor at the University of Connecticut Law School in
West Hartford, Senator Grassley, who did do an analysis as de-
scribed there.
Senator GRASSLEY. Can you give me the name of that person, or
can you supply it for the record?
Judge TYLER. Yes.
Senator GRASSLEY. Okay. Give me a little bit about their back-
ground, their qualifications to review the Judge's writings, and
their history with the ABA?
Judge TYLER. Wait a minute. Now wait a minute. I lost you on
that. The qualifications of whom?
Senator GRASSLEY. Of this law professor at the University of Con-
necticut Law School that did the reviewing of Judge Bork's anti-
trust writings.
Judge TYLER. This is a man named Leonard Orlin, who as far as
I know never had any particular connection with the ABA, this
committee at all. He has taught a great deal at both Connecticut
Law School and at Yale Law School as a visitor in among other
fields, antitrust law.
I happen to know him, and he asked me if we would mind if he
submitted something, and he submitted this.
Senator GRASSLEY. Has he published in that area, written books
in that area?
Judge TYLER. Yes. I cannot give you the titles.
Senator GRASSLEY. But he has published in that area?
Judge TYLER. Yes.
Senator GRASSLEY. He has published books on antitrust?
Judge TYLER. Yes.
Senator GRASSLEY. Okay.
The same letter states that three members of the ABA Commit-
tee interviewed Judge Bork. Is that correct?
Judge TYLER. Correct.
Senator GRASSLEY. Concerning the fact that our committee spent
30 hours interviewing Judge Bork, how much time did the ABA
Committee spend interviewing Judge Bork?
Judge TYLER. I would say approximately 6 hours, sir.
Senator GRASSLEY. Okay. Did any one of those three that served
on the ABA Committee end up being one of the four members who
1212
voted that Judge Bork was not well-qualified to serve on the Su-
preme Court.
Judge TYLER. At the time those interviews were conducted, we
did not know whether there was going to be any minority, majority
or any
Senator GRASSLEY. I know that. I am asking after the fact. Did
any of the three people that served on this committee end up
voting against Judge Bork in the sense of being one of the four
that voted that he should not receive the approval of the ABA?
Judge TYLER. I am sorry, but to answer that would start us down
the road as to who voted how, which I am trying my best to avoid.
Senator GRASSLEY. I did not know that was any big secret. We
read that in the paper, did we not?
Judge TYLER. YOU did, but I am trying to avoid that because of
two thingsnot because of any personal preference, obviously, be-
cause it seems to me that once you do that, we go down the slip-
pery road of getting into who did what and why, and I would like
to avoid that because we are reporting as a
Senator GRASSLEY. I thought that is what we were doing to Judge
Bork here?
Judge TYLER. Fine, but he is the nominee. We were acting as the
committee.
Senator GRASSLEY. Well, pardon me. I am not a lawyer, but it
seems to meat least the perception I have had as a nonlawyer
member of this committee, and this is the fourth Supreme Court
nominee I have had an opportunity to participate inthat we have
put great weight on the ABA's opinion of Supreme Court nominees.
At least, we have given great weight to it in our past deliberations.
So why should we not freely discuss who is for and who is
against? That makes people responsible for their actions, if they
serve a kind of a quasi-public function, which I think the ABA does
in this particular instance.
Judge TYLER. NO doubt of that, sir. But I am addressing a differ-
ent problem. It seems to me that once you find out who votes how,
then we become not a committee but just a group of people who
will be questioned, well, how did you decide this and why did you
say that. And that, it seems to me, in the long run does a disservice
not only to our committee but as well to this committee.
Senator GRASSLEY. Has it always been that way?
Judge TYLER. I never know of any situation where I ever heard
of the ABA Committee coming in and saying, "Well, you know, we
voted this way and so and so voted this way and so on and so on." I
never heard that being done.
Senator GRASSLEY. Well, maybe I am naive about how things
ought to be done. But it would seem to me that you are serving a
very public function in your review of these nominees. However,
there is no sense in my spending my time on this issue. But, you do
at least have my point of view to consider, not that you will give it
a lot of weight.
The CHAIRMAN. Ten minutes, Senator. We are all under a 10-
minute rule. I do not know how much time you have left.
Senator GRASSLEY. Okay. Let me go on then. You spent about 6
hours interviewing Judge Bork. I would like to know if you believe
that considering the weight our committee gave to this30 hours
1213
of interviewingwhether or not you consider 6 hours sufficient
enough time?
Judge TYLER. Oh, yes, because it seems to us that in the totality
of things that what the Senate Judiciary Committee does in time,
it is infinitely important that you take all the time that you see fit.
And, therefore, conversely, we have a role where I do not think it
is really necessary for us to spend anywhere near as much time as
you might choose to take with a nominee to the Supreme Court of
the United States.
It just seems to work out that way. It happens that in the past, I
believe that, of courseI remember the nomination of Justice Ste-
vens because I happened to be in the Justice Department, and it
was one of my jobs to deal with the Judiciary Committee, and the
questioning, say, of Justice Stevens was very, very brief.
I happened to know because the Chairman of the ABA Commit-
tee told me, because I was dealing with him to get the views of the
ABA committee and, as I recall, their interview was briefer than
that of the Senate committee. So there always seems to be that
kind of proportion no matter who the candidate is.
The CHAIRMAN. Senator
Senator GRASSLEY. I thought I had 2 minutes left.
The CHAIRMAN. YOU do. Go ahead. Let us finish this up tonight.
Senator GRASSLEY. In the letter where it states that some had
negative perceptions of his political or ideological views. Was this
just a generalized feeling, or were there specific cases or instances
cited that led to this conclusion?
Judge TYLER. I can tell you my recollection is the people whom I
interviewed frequently would say no more. They would say to me,
'"Now listen, you know me. I cannot possibly criticize this man's
great experience, his integrity, his high intellectual ability and his
performance as a lawyer and a judge, but somehow for reasons I
cannot articulate even to you, I am opposed to him on what I will
call philosophical or ideological grounds." That happened quite a
bit
Now we felt that we should report these things because we
cannot exercise thought control or word control or speech used by
our interviewees. You see, we do not, as I said earlier, Senator,
send out a questionnaire or a check list for people to answer.
So we are left with a non-statistician, non-pollster type set of
interviews.
Senator HUMPHREY. Well, Judge Tyler, that was lick number six,
I guess, wasn't it? Senator Simpson, how many times has it been
mentioned now, either in print or orally, that certain of the people
whose opinions you solicited found the nominee unfit for political
reasons.
You say that is not a legitimate grounds. Could you not just say,
instead of saying that some of the respondents objected on political
grounds, that some of the respondents objected for reasons which
the ABA does not consider legitimate to this evaluation? Couldn't
you say that, and won't you do that in the future?
Judge TYLER. NO, I am not sure that is really quite appropriate
because we were trying
1214
Senator HUMPHREY. Well, I think it is.
Judge TYLER. It does not
Senator HUMPHREY. YOU say, on page one
Judge TYLER. Oh, I know what we say, but let me answer you.
Senator HUMPHREY [continuing]. That matters, that philosophy,
political or theological philosophy are not consequential to this in-
vestigation, and yet all through this letterbang, bang, bangwe
get citations of people or groups who said they objected on grounds
of political ideology. That is like saying you will never
Judge TYLER. Let me answer that, if I may, sir.
Judge TYLER. TWO things to say. First, I accept that we were a
little pompous in the leadoff. But we had a choice to make, and we
made it the way we made it because to withhold this information,
after interviewing all these people, it seems to me would be a dis-
service to your committee.
But it has to be recognized thatspeaking for myself at least
one can easily filter out the views of a witness who said that this
nominee had great professional qualifications, but then added his
doubts because of unspecified ideological considerations.
So though we interviewed people, there was a filtering process,
and I assume every member of the committee, whether he voted
well-qualified, not opposed, or not qualified, had to filter, and I
hope one of the big filters we used was not to make our decision on
the basis of philosophy or ideology.
But to withhold this information from this committee seemed to
us to be not the way to go. So I hope you will understand that
though we report it, that does not mean that I or Mr. Fiske, or
some person who voted in whatever way he or she voted, should
have fallen for the ideological reasons to the extent they were even
expressed.
Senator HUMPHREY. I really cannot buy that, fully. It may well
be
Judge TYLER. Well, perhaps we were wrong, but I am trying to
explain to you what our reasoning was in reporting this.
Senator HUMPHREY. Fine. I am just saying that it may well have
been unintentional, but you give legitimacy to something that you
claim is illegitimate, namely, objection on political grounds.
Judge TYLER. Well, as I said earlier in response to another ques-
tion along these lines, it is of course true that I certainly do not
know how, and I doubt anybody else does, to exactly put calipers
on a man's brain or a woman's brain, when she is saying that "I'm
not voting on ideological grounds," and maybe inside, he or she is. I
cannot answer that.
But I am trying to say that we struggled with this and tried to
do our best.
Senator HUMPHREY. I would ask you towe will just have to
differ on that, it may well be you did not intend tobut I
Judge TYLER. Well, maybe there might not be as much difference
between the majority at least, and perhaps even the minority as
you think.
Senator HUMPHREY. I am simply making the point that you give
the appearance of legitimacy by constantly alluding to it, when you
claim at the outset that
1215
Judge TYLER. Well, then, we made the wrong decision.
Senator HUMPHREY. If I may be permitted to finish; that you give
legitimacy to something, repeatedly, by your technique, which, at
the outset, you pompously claim is illegitimate.
Judge TYLER. Well, I have already accepted thatand I have had
it said about my judicial writings, by the way, by losers, that I was
a pompous writer. I accept that.
Senator HUMPHREY. All right. Would you kindly turn to page 6
of your letter. Do you have a copy there? At the very top para-
graph you list a number of organizations that provided submissions
to your committee on Judge Bork, and you say "The committee
carefully reviewed and considered written submissions obtained
from"and then you list the groups.
Now what does that mean, obtained from"? Did you solicit these
or did these just come out
Judge TYLER. Well, that was a question, sir, that came up earlier.
They really, on the whole, were not solicited. It is true that several
people called me, or wrote me, and said would you mindI am
sending youwhatever.
Judge TYLER. I did not solicit those, but I did not cut them off.
Judge TYLER. And somebody in my office made copies of all these
and circularized them to every committee member.
Mr. FISKE. Senator, I think the important point hereand it
was raised beforeis that this paragraph on page 6 lists all of the
submissions that were sent to the committee, and in the interests
of completeness we listed all the ones that we received.
We did not go out and solicit these, but if someone sent them in,
they were circulated to the committee and reviewed.
Senator HUMPHREY. I see. Well, other groups in the future will
know better than to wait to be asked, but I just cannot help but
remark that all of these organizations, with the exception of the
administrationall of the private organizations you listthe
ACLU, the Women's Bar Association, the AFL-CIO Executive
Council, People For The American Wayall of these groups can
bethere is Nader's outfit there, too. Public Citizen Litigation
Group. That is Nader's outfit.
All of these groups that you list can be counted upon, reliably, to
oppose almost any important effort on the part of this administra-
tion.
So, again, we get the impression that your selectivity is not that
objective, at least
Judge TYLER. We are not being selective, Senator. That is the
point. We are not so naive as to be able to form a judgment as to
who is saying what and why.
I leave that up to the good sense and the integrity of each
member, and I am sure Mr. Fiske does.
Senator HUMPHREY. Okay. Last question, last question. Can you
believe it?
If you were back in your judicial chambers and a case came to
your court in which an organization of which you were a member,
are a member, submitted a brief on behalf of one of the two parties
to the case, would you hear that case?
1216
Judge TYLER. Of course not, but that is not our problem here.
Senator HUMPHREY. Well, let me continue. I am glad to hear
that. I was not sure quite what the canons of ethics are in that
kind of a situation.
But you have got three members of your selection committee
who belong to one or more of these organizations, which organiza-
tions had submitted briefs in opposition to the nomination and
your members are sitting there as judges of Robert Bork.
All of these organizations to which three of your members belong
have submitted briefs in opposition to Judge Bork.
Judge TYLER. Well, you heard what I had to say, and you do not
know how I voted. You might be surprised. But in any case you are
right: there are certain people, almost inevitably, who may be
members of various groups, who take a position contrary to what a
member of this committee thinks is correct, even though he has
been a member of that organization.
Senator HUMPHREY. Well, you make the point that we do not
know
Judge TYLER. We are not in an adversary relationship here. We
are not performing a judicial function.
Senator HUMPHREY. Well, we are looking for credibility and high
ethics, and we do not know how these particular members of the
selection committee voted.
But my point is they should never have been in the position to
vote in the first place, because they are members of organizations
which submitted briefs in opposition to the very man they were
judging. See my point?
Judge TYLER. I see your point but I do not accept it.
Senator HUMPHREY. Well, it is the very same thing as if a case
came into your court under those circumstances.
Judge TYLER. NO, no. I said earlier, that this committee, through
its chairman or any group, has nothing to do with the appoint-
ments to this committee at all. I had nothing to do with the choice
of the members of this committee.
I assume that lawyers being what we are, a number of our mem-
bers are members of various groups which may or may not have an
interest in a particular candidate.
I assume further that many of usand I assure you I am one of
those because I am one of the older ponies in the legal paddock of
this country and I know a lot of lawyers. I have been a lot of
things, and I get to know a lot of lawyers.
I have worked on reports on those gentlemen to be nominated. I
cannot believe that it is a disservice to the ABA or the Senate Judi-
ciary Committee to have a fellow like me working on it.
But it is true that I know lawyers and I like them. But some law-
yers, in my view, should not be United States District Judges just
because I like them.
The same thing is true with political activity. Lawyers like to get
involved in politics. They support people including maybe some
members of your committee.
As long as they act with integrity and approach to the problems
of this committee without showing their political biases, such as
they may be, I do not see that as a problem, because we are not
judicial officers in our function.
1217
Senator HUMPHREY. The ABA is taken very seriously, perhaps
too seriously by the public, and the Senate, in its evaluation, espe-
cially in view of the fact of the matter that I have just reviewed.
Now you do not agree with that, but I do. I think when you are
taken that seriously, you have an extra high responsibility to
adhere to high standards of ethical conduct.
Judge TYLER. Right. I would agree with that, but remember that
we are 15 working, private lawyers.
Senator HUMPHREY. That does not matter,
Judge TYLER. I know, Senator, but we cannot be unrealistic
about what we are. I have admitted to this committee, my commit-
teethey all knew it anyhowmy prejudices or biases as best I
can. Others have done the same. But we cannot divorce ourselves
and be 15 people who live a neutral, sheltered, irrational, non-
worldly lives.
Senator HUMPHREY. Well, I am saying that members of the selec-
tion committee who are also members of private organizations
which publicly oppose the nominee ought to recuse themselves in
that circumstance.
Or at least at the very least to announcepublicly that they have
what I would regard as a conflict of interest. They might not
regard it as such, but that ought to be at least divulged, the mem-
bership, if that is the case, in organizations that are opposed to the
very man whose qualifications they are judging.
Do you see my point?
Judge TYLER. I see your point. I am not convinced that it carries
to its ultimate conclusion as you advocate, with all respect.
The CHAIRMAN. IS the Senator finished?
Senator HUMPHREY. Yes. If I am out of time, I am, I guess.
The CHAIRMAN. Yes. You have been, as we all have been.
Judge TYLER. It is my fault with my long answers.
The CHAIRMAN. Let me enter in the record two things. One is the
American Bar Association report dated August the 5th, 1986 ad-
dressed to the Chairman Thurmond on Justice Scalia, and the one
on Justice Rehnquist.
[Information referred to above follows:]
1218
113
American Ban Association
August 5, 1986
The Honorable Sjfrfxsm Thurmond

Chairman *^
Dear Hr. Chairman:
This letter is in respons* to th* invitation

to the Standing Committee on Federal Judiciary of the
American Bar Association (the * Coaaittee 11 ) to subait
its opinion with respect to the noaination of th*
Honorable Antonin Scalia to be an Associate Justice of
the Supreme Court of the United States.
The Committee's evaluation of Judge 8calia is

based on its investigation of his professional com-
petence, judicial temperament and integrity. Consis-
tent with its long standing tradition th* Coaaittee's
investigation did not cover Judge Scalia's general
political ideology or his views on issues except to th*
extant that such natters sight bear on judicial tem-
perament or integrity.
The Committee investigation included the M

Fiir DoXXX*
following:
4VMM0 O* OOVI1MOI
(1) Members of the Coaaittee interviewed th* X 0 *

Justices of the Supreme Court of th United States and
a large number of other federal and stat* judges
throughout the United States.
(2) Committee aembers interviewed a cross 12'JZ

section of practicing lawyers across th* country.
(3) Committee aeabers interviewed a number

of deans and faculty members of law schools throughout
the country.
STANDING COMMITTEE ON FEDERAL JUDICIARY

7&0 NORTH LAKE SHORE DRIVE CHICAGO ILLINOIS oen TELEPHONE (312) S6O-A00O
1219
114
Honorable Strom Thurmond -2- August 5, 1986
(4) A team comprised of the Dean and professors of a

prominent law school and a separate team of practicing attorneys
reviewed Judge Scalia's opinions. They were also reviewed by
three summer law students working in the office of one of the
Committee members.
(5) Two members of the Committee interviewed Judge

Scalia.
Professional Background
The Committee's investigation revealed that Judge

Scalia's career has included service as a practicing lawyer, a law
school professor, a lawyer in government service, and a federal
circuit Judge. He received a B.A. degree with highest honors from
Georgetown University in 1957, and graduated from Harvard Law
School with an LL.B., magna cum laude, in 1960. He was admitted
to the Bar of the State of Ohio in 1962.
After serving a year as a Sheldon Fellow of Harvard

University, Judge Scalia practiced law in Cleveland, Ohio, as an
associate of the firm of Jones, Day, Cockley t Reavis. He then
served as an associate professor at the University of Virginia Law
School from 1967 to 1970, and as a professor from 1970 to 1974 (on
leave 1971 to 1 9 7 4 ) .
He was General Counsel, Office of Telecommunications

Policy, Executive Office of the President, from January 1971 to
September 1972, at which time he was appointed Chairman of the
Administrative Conference of the United States, in Washington,
D.C., until August 1974. He was an Assistant Attorney General,
Office of Legal Counsel, in the Department of Justice in
Washington from August 1974 to January 1977. He was a visiting
professor at Georgetown University Law Center from January to June
1977, and later in 1977 he became a Professor at the University of
Chicago Law School. He served there until 1982 (on leave 1980 -
1981 as visiting professor, Stanford Law S c h o o l ) . In 1982 he was
nominated by the President to the United States Court of Appeals
for the District of Columbia Circuit, and in that year his
nomination was confirmed by the Senate.
Through interviews of those who worked with Judge Scalia

during the various stages of his professional career, the Commit-
tee has concluded that he has demonstrated outstanding competence,
the highest integrity, and excellent judicial temperament.
1220
115
Interviews with Judges

The Committee interviewed more than 340 parson* during
its investigation, over 200 of whom are federal and state judges,
including the Justices of the Supreme Court of the United States.
Host of those who know him spoke enthusiastically of his kn
intellect, his careful and thoughtful analysis of legal problems,
his excellent writing ability and his congeniality and sens* of
humor. Almost all who know him, including thoaa who disagree with
him phil'osophically and politically, expressed admiration for his
abilities, and for hin integrity and judicial temperament. He is
described as "learned and studious," "always well prepared," "very
congenial," "a person of excellent character and scholarship" and
"careful and thoughtful and not inflexible."
Many judges who do not personally know Judge Scalia have
a favorable impression of him based on his reputation and their
reading of opinions he has written. The judicial community was
strong in its praise of Judge Scalia's qualifications.
Intervit;ws with Lawyera

The Committee has also contacted about 80 practicing
lawyers throughout the United States. We interviewed a cross
section of the legal community, including women and minority
lawyers. Having practiced law in Cleveland, taught in law schools
in Virginia, the District of Columbia, Chicago and in California,
having served as a federal judge and in government service in the
District of Columbia, and having chaired the Administrative Con-
ference of the United states, and the Administrative Law Section
of the American Bar Association, Judge Scalia has been brought
into contact with and worked with lawyers across the country.
From the standpoint of his intellect and competence, temperament,
and integrity he is very well regarded by almost all of those who
know him. Lawyers have commented that "he is always well
prepared, he asks the right questions and writes exceedingly
well"; that arguing before Judge Scalia is "an exhilarating
experience"; that he has "strong intellectual capabilities"; that
he is "very fair"; and that he has "a warm and friendly per-
sonality." There were isolated expressions of concern, or objec-
tions, about"~a~~1ratrR Of openmindedneas or the reasoning in his
opinions.
1221
116
Honorable Strcs Thurmond -4- August 5, 1986
Interviews with Deans and Professors of Law

" The Committee interviewed more than 60 deans and faculty
member* (including specialists in constitutional law and scholars
of the Supreme Court) across the country, many of whom know Judge
Scalia personally. He is uniformly praised by those who know him
for his ability, writing skills and keen intellect. Again, there
were isolated expressions pf concern about his strong conservatism
or" a lack of openmlndedness.
Survey of Judge Scalla's Opinions

Judg Scalia 'a opinion* were *xansin#d for the Committee
by the Dean and a. group of law *chool professors at the University
of Michigan and by a separate group of practicing attorneys. Both
of these groups expressed high praise for his intellectual
capacity, hi* clarity of expression, hi* ability to analyze com-
plex legal is*u*, and his organization and articulation of ideas.
He i regarded as a splendid legal writer. Three sunnier law
student* who also reviewed hi* opinions expressed concern about
his opanmindudnit i?.
Interview with'Judge Scalia

Judge Scalia was interviewed by two members of the
Committee and the discussion covered the adverse comments and
objections that had been received by Committee members. This
discussion, against the bacKground of our investigation, satisfied
our Committee as to any question that had been raised. Judge
Scalia impressed the interviewers as a highly intelliaent,
articulate and congenial person. He appears to be a very hard
worker, and highly enthusiastic about his role in making the legal
system work properly.
Based on the Committee's investigation, it has unani-

mously found that Judge Scalia ha* all of the professional
qualification* required of an Associate Justice of the Supreme
Court of the United States. Those who know and have worked with
Judge Scalia describe him as intelligent, analytical, thorough and
hard working. His diversity of experience as a practicing lawyer,
a lawyer in government service, an academician and a judge
provides a valuable background for service on the Supreme Court.
Furthermore, the Committee's investigation reveals that
Judge Scalia1* integrity is beyond reproach, and he is well
regarded for his judicial temperament. Judge Scalia is among the
best available for appointment to the Supreme Court, and he is
86-974 0 - 8 9 - 4 1
1222
117
entitled to the Committee's highest evaluation of a nominee to tha

Court because of the high standards he meets in terms of profes-
sional competence, judicial temperament and integrity. Accord-
ingly/ we unanimously find him "Well Qualified".
This report is being filed at tha commencement of tha
Senate Judiciary Committee's hearing. We will review our report
at the conclusion of the hearings, and notify you if any circum-
stances have developed that require modification of our views.
Respectfully submitted,
tfSKE, OR.
1223
101
American Bar Association

July1 r29V*I9t<*
Honorable Strom Thurmond

Chairman ' *
Washington, O.C. 20S10 tamemcun
JMCIM
USMM
Cllmi OH a
Dear Mr. Chairmant , . tcvnnMcweurr
This letter is in response to the invitation Olf a. .OH1

to the Standing Committee on Federal Judiciary of the
American Bar Association .(the "Committee") to submit
its opinion regarding the nomination.of the Honorable
William Hubbs Rehnquist.of Washington, D.C.. to be
Chief Justice of the United States.r '" ' "~ '
' The Committee's investigation of Justice fsotnmrtnaii
nj
Rehnquist covered his professional competence, . . . iwmcmcun
judicial temperament and integrity. Because the uwmiwa
nominee is a sitting Justice of the Supreme Court and haiin
Owwv. 0 0 WHS
is being nominated for the position of Chief Justice, r
we were particularly interested in his administrative .*
abilities, leadership qualities and collegiality. 01
Consistent with its long standing tradition, the Ofsrftjcrof cotu
Committee has not concerned itself with Justice LcmcufT
Rehnquist's general political ideology or his views on

issues except to the extent that such matters might
bear on judicial temperament and integrity.
The Committee's investigation of Justice
Rehnquist included the following inquiries: '
(1) Members of the Committee interviewed all
of the Associate Justices of the Supreme Court and a MKUalMt
large number of other federal and state judges
throughout the United States. asaaar
(2) Committee members interviewed a cross
section of practicing lawyers throughout the United
States.
STANDING COMMITTEE ON FEDERAL JUDICIARY

TV) MOWTH LAKE SHORE DRIVE CHICAGO. ItXINOIS 90611 TELEPHONE (312) SSS-6000
1224
102
Honorable Strom Thurmond .v. : -- -2- .. .July 29, ltf
r .'*'^(3)' 'Committee members interviewed many deana and facult;

êmbetiôl^!^ achooia .throughout/the country, including a nuabV:
ToC CQnat^tttfotxal and ^Suprea* CourUcb9l,arji>
^.--H._w.i4flf:jA group ..of.practicing,attorneys reviewed ,

approximately 200 of.thf written,opiniona authored by Juatice
RehnqiLp>*H
(5) Three members of the Committee interviewed' Juatice^
Rehnquiat., . - *'
*-Justice Rehnquist's career has included service aa'a"^ \-J
practicing lawyer f.-an. Assistant/Attorney General-with the United?
States Department t>f:Justice* .and A S an AssociatecJustice of thf
OnitedJStatea Supreme Court.^He'received A.B. and M.A. degreeaj
from Stanford University in J948,*an M.A.degree from Harvard ^
Dniveraity in 1949, and an LI.B. 'from'Stanford Law School in 19539
He was*fc*ditinguiahed atudent in the law achool, ranking firat.<|
his class.. His military-experience .includes service aa a n o n - ^
commissioned officer in the'U.Si Army Air Force during the perioah
from 1943 to 1946. * . ' .u - .
Justice Rehnquist served as a law clerk to Associate

Justice Robert H. Jackson of the Supreme Court of the United
States from 1952 to 1953. He then commenced the private practice
of law in Phoenix, Arizona. From 1953 to 1955 he was an associate]
in the firm of Evans, Kitchel & Jencks. During 1956 and 1957 he, ^
was a partner in the'finn of Ragan t Rehnquist and from 1957 to j
1960 he was a partner in /the firm of Cunningham, Carson & ' ""vl
Messenger^ In 1960 he.formed with James. Powers-.the Phoenix firm
of Powers'"*-Rehnquist, where he practiced until"1969. From 1969
to 1971 he-was an Assistant Attorney General, Office of Legal .-v
Counsel, United States'Department'.'of'Justice in Washington, D.C*
In 1971 he was nominated by President Nixon, as Associate Justice
of the United States Supreme Court, and this nomination was ; *
confirmed by the Senate in that year. ''
Through interviews of those who worked with Justice

Rehnquist during various stages of his professional career, both
prior and subsequent to his appointment to the United States
Supreme Court, the Committee learned that he has demonstrated a
high degree of competence and integrity, and has displayed
excellent judicial temperament.
1225
. 103
^morable^Strom Thurmond -3- July 29, 1986
tfch
U strlrvn " J"dq
in itainvestigatlon,.the w Committe.^nterviewed over 300
; incluîngJa^Df5%lifrcu|xen^>S|^la:^^
of the. ludiciafvvwhbTknow*hi.:describe.hia.as.-5a'.truer*-,
of the. 1ydrtfia^<rhd;kiidw:W:a^ ,W1-
r polleglal, "genial,,and "low key,^'.unbelievably., bxHJiaht,
Ivery capable, individual in., every respect?. ^GeneraJQyVrjudges "
across the country who have become familiar with Just ice" Rehnquist
have expressed admiration and respect for him as. an able, hard
working* conscientious individual. On the whole, the judicial
iunity was higb.,in its praise of .'Justice Rehnquist's abilities
qualification*??,1* Of Igreat importance,^he enjoys' thejespect, \
esteem of his colleagues on the Court!.. . '
with Lawyers'' -
The Committee.contacted,approximately 65.practicing
lawyers throughout the*Onited States. Weînterviewed a cross. ..
ctipn of the legal .community,; including^women and minority
lawyers. Many- who^knbw Justice.Reh/iquist,. including many who
disagree with him politically and philosophically, speak of. warm
i l f ga r irtwratnl7^gsgr'iUg
^ htm~a
y ^vgry talented," "a bright
g
and able man,"" "always
"l ll prepared,"
well d " andd one who "brings
"bi out the
t>at in people and will facilitate the work of the Court."
interviews with Deans and Professors of Law
The Committee spoke to more than 50 deans and faculty
aeabers of a number of law schools throughout the country. Some
of these have known Justice Rehnquist personally. We found that
he has visited and delivered speeches at several of the law
schools. Many of these individuals spoke highly of his writing
and analytical ability. The vast majority had strong praise for
his professional qualifications.
lurvey of Justice Rehnquist's Opinions
Approximately 200 of Justice Rehnquist's opinions were
examined for the Committee by a group of practicing attorneys.
rrom that review it can be concluded that the Justice's legal
and writing ability are of the highest quality.
1226
Honorable StroaT Thurmond -4-
:
Interview with Justice Rehnguist -'-
' ^ruatice Rehnquist'waa interviewed by three member* ^<
the Committee. The Committee members have found him to be0
extremely Intelligent;- articulate* .friendly;'and:oommitted
fair and: proper^dminietration' of c juatioe^'. * Be. haa" demonatrat
outstanding1 qualltl'eai.aa^ juriat^ and. ia approaching theJ pba]
of fuefÔ^tica^wi^hênthuaiaam^ .detMcm^natôn: and depict
. *.; r^W'ea* 0 "! ^fi^vea^gationâaacrlbadâb^^tnan ,
tee unanlmbtialy. hea foundTthat TUaîoeltehnquiat meeta the
atandarda1^tf*profeaaional competence, ^judicial temperament
integrity/'ie among'the beat Available for appointment aa Chie|
Justice of the United Statea/'and la entitled to the Committee1!
higheat evaluation of the nominees to the Supreme Court "*~ Wei]
Qualified." ^ .. _ - . f ^..-;r^-..i:*vu
Thia report ie being filed" at the commencement of
Senate Judiciary Committee* a'J hearing.' We will review: our
at the concluaion of the nearinga," and notify you if any; circum"
stances biye* developed. tiiat^may.re<juiri modification of our vi<
>-.fc'--^..iir *-^->i.*..v,.~. BubBitted, . 71-..' V;-'."-i:.
ROBERT B. n
Chairman
1227
The CHAIRMAN. The reason why I do that is to point out that
similar language is used in both those, coming to different conclu-
sions, but similar language.
For example. "Almost all who know him, including those who
disagree with him philosophically and politically expressed admira-
tion for his ability."
"There are isolated expressions of concern and objection about
lack of openmindedness in the reasoning of opinions."
"There were isolated expressions of concern about strong con-
servatism and the lack of openmindedness."
"People who disagree with him politically and philosophically, al-
though speak warmly about him", et cetera.
So the conclusions reached may be different, but the format of
the reports are very similar, but I will ask, without objection they
be entered in the record with the ABA report, although it will be a
second time it will probably be in the record.
And also that I think we should put into the record, the ABAif
we have not alreadythe "Standing Committee on the Federal Ju-
diciary, How it Works," and particularly, the page referring toI
believe it is page 4. "In investigating temperament, the committee
looks to the prospective nominee's compassion, decisiveness, open-
mindedness, sensitivity, courtesy, patience, freedom from bias, and
commitment to equal justice among other factors," quote, unquote.
And that whole page I ask be put in the record.
1228
AMERICAN BAR ASSOCIATION Standing Committee on

30 Rockefeller Plaza Federal Judiciary
New Vbrk, NY 10112 1800 M Street, N W
FIRST CIRCUIT Washington, D C 20036
(202) 331-2210
Portland, ME 04101
StCOND CIRCUIT
WilNajTjJ^ Willis
12S Broad Street
New York NY 10004 September 21, 1987
THIRD CIRCUIT
|eromej_$hesta(k
Suite 3600
1600 Market Street
Philadelphia, PA 19101
FOURIH CIRCUIT The Honorable Joseph R. Biden, Jr.
lames A Howard, Sr
1410 hirst ViFJWTBank Tower
Chairman
101 St Paul's Boulevard Committee on the Judiciary
Norfolk VA 2JS10
FiriH CIRCUI1
I Invrj L,o< hridfie Washington, D.C. 20510
Suite 1M10
919 Congress Avenue
Austin, rx 78J01
SIXTH ( IRCUITl
)ohn C Ham I Re: Robert H. Bork
Columbus OH 432rSJl
SFVLNIH CIRCUIT
Dear Mr. Chairman:

This letter is in response to the invitation to
the Standing Committee on Federal Judiciary of the
American Bar Association (the "Committee") to submit its
opinion with respect to the nomination of the Honorable
Robert H. Bork to be an Associate Justice of the Supreme
Court of the United States.
The Committee's evaluation of Judge Bork is
based upon its investigation of his professional compe-
tence, judicial temperament and integrity. Consistent
with its long-standing tradition, the Committee's inves-
tigation did not cover Judge Bork's political or ideologi-
cal philosophy except to the extent that such matters might
bear on judicial temperament or integrity.
t 78
Montgomer 36101
The Committee investigation included the
DISTRICT OF COLUMBIA following:
CIRCUII
lames I Bicrbower
(1) Members of the Committee interviewed
1875 I S,u
1275
NW
Justices of the Supreme Court of the United States,
colleagues of Judge Bork on the District of Columbia
Circuit and a large number of other federal and state
Suite 600 judges, including female and minority members of the bench
1666 K Street, NW throughout the United States.
BOARD OF COVFRNORS
LIAISON
Sharp Whitrr
2nd Floor, South Lobby

1800 M Street, NW
1229
(2) Committee members interviewed practicing lawyers

across the country, including female and minority members of the
bar. Also interviewed were former law clerks of Judge Bork and
colleagues from the period of his tenure as Solicitor General and
Acting Attorney General.
(3) Committee members interviewed a number of deans and
faculty members of law schools throughout the country, including
those who were associated with Judge Bork at Yale Law School.
(4) A team comprised of the Dean and professors of a
prominent law school reviewed and reported on Judge Bork's
opinions and those opinions were also reviewed by a number of
practicing lawyers who reported directly to the Committee.
(5) Judge Bork's non-judicial antitrust writings were
reviewed for the Committee by a law professor expert in the
antitrust area and the entirety of Judge Bork's non-judicial
writings, both scholarly and informal, were collected, summarized
and reviewed by the Committee members. Newspaper and periodical
publications on Judge Bork throughout his career were also
collected, summarized and reviewed, as were scholarly critiques
of Judge Bork's writings both on and off the bench.
(6) The Committee reviewed submissions to or obtained
by it regarding Judge Bork from a number of groups or
institutions which have taken a position respecting his fitness
as a candidate for the Supreme Court (see infra, page 06).
(7) Three members of the Committee interviewed Judge
Bork at length on two separate occasions.
The Committee's investigation revealed that Judge
Bork's career has included service as a practicing lawyer, a law
school professor, a lawyer in government service and a federal
circuit judge. He received a B.A. degree from the University of
Chicago in June 1948 and graduated from the University of Chicago
Law School with a J.D. in 1953. He served in the U.S. Marine
Corps Reserve from 1945 to 1946 and from 1950 to 1952, receiving
an Honorable Discharge as a First Lieutenant in 1952. In 1954 he
was admitted to the Bar of the State of Illinois.
After serving as a research associate at the University
of Chicago Law School for a year, Judge Bork practiced law first
in New York at Willkie, Farr & Gallagher and then in Chicago at
Kirkland & Ellis, where he was elected partner.
1230
In 1962 Judge Bork accepted a position as associate

professor at Yale Law School, becoming a full professor in 1965.
In 1973, he was appointed Solicitor General of the United States,
becoming Acting Attorney General for a brief period beginning in
1973 and then continuing as Solicitor General until January 1977.
In 1977, he returned to Yale Law School as Chancellor
Kent Professor of Law and was named Alexander M. Bickel Professor
of Public Law in 1979.
In 1981 he returned as a partner to Kirkland & Ellis in
Washington, D.C. He left that firm in February 1982 after his
confirmation as Judge of the United States Court of Appeals for
the District of Columbia Circuit.
Interviews with Judges
The Committee obtained the views of some 77 federal
Court of Appeals judges, 60 federal district judges and 35 state
court judges regarding Judge Bork's qualifications. The
Committee also obtained the views of five of the United States
Supreme Court Justices. Virtually all of the judges interviewed
praised Judge Bork's intellectual and professional attainments,
expressing admiration for his keen intellect, experience, and
vigorous analytical abilities. A clear majority of the judges
rated the nominee highly qualified for the Supreme Court.*
Typical of the comments of this group were such as: "On every
basis, temperament, background, and experience as a jurist, he is
outstanding," "outstanding choice from every aspect" and
"professional qualifications are Grade A." A smaller group rated
him only qualified, because of expressed concerns about his
judicial temperament, e.g., compassion, sensitivity to concerns
of women and minority groups, and possible lack of
open-mindedness. A few considered the nominee disqualified
despite recognition of his high professional capabilities and
intellect because of their perception that his political and
ideological views disqualified him. Typical comments of this
It should be noted that in summarizing interviews, the

"terms of art" used by our Committee for rating Supreme
Court nominees have not been used, simply because most of
the interviewees did not speak in precisely those terms.
Moreover, a number of interviewees concluded that the
nominee was in their words "not qualified" solely because of
political views or ideology, which are not considered by the
Committee.
1231
group were "would split the country on many critical issues,"

"does not have a well-rounded view of the critical constitutional
issues" and "my concern is that he would vote to reverse
important precedent on First Amendment, church-state, and
abortion issues." A very small group opposed the nomination
without specifying grounds for their opposition.
Interviews with Deans and Professors of Law
Seventy-nine law school academics, deans and
professors, were interviewed. Virtually all expressed laudatory
views concerning his intellectual capacity. Most rated the
nominee as highly qualified or qualified. Of these, the smaller
group that deemed him only qualified expressed concerns about
either his philosophical or political views or his judicial
temperament, e g_. , compassion, open-mindedness and sensitivity to
concerns of women and minority groups. The remainder, opposed to
his nomination, cited concerns about his judicial temperament or
ideology, or were opposed on unspecified grounds.
Interviews with Lawyers
Over 150 practicing lawyers were interviewed. Virtually
no one questioned Judge Bork's intellect or professional
attainments. Those persons who considered Bork either highly
qualified or qualified made laudatory comments concerning his
integrity, scholarship and professional competence. A minority
of the lawyers considered his integrity and intellectual
attainments sufficient to view Bork as qualified but concluded
that he should not be confirmed because of their concerns about
his perceived ideological or political views. Another group
objected to his nomination because of concerns about his legal
analysis or his regard for precedents. Still another smaller
group objected to his nomination without expresing specific
grounds.
Eleven of Bork's former law clerks were interviewed,
all of whom regarded him as highly qualified. They specifically
characterized him as extremely hard working, attentive and
courteous during oral argument and as having "awesome" *
intellectual and analytical abilities.
Finally, a number of present or former lawyers in the
office of Solicitor General who served under the candidate when
he was head of that office was interviewed. All characterized
the nominee as flexible, "willing to listen to arguments" and
ready to have any one of them express their views in meetings in
the Department of Justice where Judge Bork had taken different
positions. They also praised the willingness of Bork as
Solicitor General to change his position, his high intellectual
capacity and his ability to analyze complicated legal problems.
1232
Survey of Judge Bork's Opinions

Judge Bork's opinions were examined for organization,
scholarship and clarity for the Committee by the Dean and a group
of ten professors at the University of Michigan Law School. The
report of the Dean, which disclaimed consideration of political
or ideological views,* summarized the professors' views. The
dominant view was very positive; the report stated that all but
one of the professors, based on the opinions they read, concluded
that Judge Bork "readily crossed the threshold of judicial
skills." His opinions were characterized as generally well
reasoned, balanced in judgment, clearly written, fair in
treatment of the arguments of losing parties and dissenters and
reflective of impressive technical judicial ability. Some of the
professors said they were impressed by his open-mindedness and
his readiness to be guided by the law, not his personal
philosophy, in his decisions. While praising him for an
extraordinary care for detail, a few of the readers said that he
occasionally carried this quality to extremes and spent
extraordinary time and attention on relatively minor points.
Several of the professors, while sharing a positive assessment of
his opinions overall, expressed concern that he sometimes reached
out to decide issues beyond what the facts of the particular case
called for, and that he sometimes displayed an unwillingness to
see the full complexity of an opposing position. One professor
also found a tendency to substitute political arguments for legal
scholarship in several of Judge Bork's opinions. That professor
felt these problems were of sufficient magnitude to compel
withholding a positive evaluation.
The opinions were also reviewed for the Committee by a
group of six lawyers at the firm of Davis Polk & Wardwell. These
attorneys concluded that Judge Bork's opinions, in the vast
majority of cases, were well written, demonstrating a clarity of
expression, keen intellectual capacity, and a fair treatment of
opposing arguments and views. Particular mention was made of his
ability to organize opinions, and to analyze and clearly
articulate his position on complex subject matters and legal
issues.
The Dean's report did not purport to represent the views

of the University or to pass upon the question of
whether Judge Bork should be confirmed.
1233
Submissions to Committee on Judge Bork from other Groups

The Committee carefully reviewed and considered written
submissions obtained from, among other institutions and groups,
the American Civil Liberties Union, the National Women's Bar
Association, the Administration, the past Chairmen of the ABA
Section of Antitrust Law, the National Women's Law Center, the
AFL-CIO Executive Council, The Lawyers Committee for Civil Rights
Under Law, the NAACP Legal Defense and Educational Fund, The
Public Citizen Litigation Group, and People for the American
Way. Apart from the Administration and the ABA Antitrust
Section Chairmen, each of these groups expressed opposition to
the nomination of Judge Bork on a variety of grounds. These
views were thoroughly aired by the Committee insofar as they
related to the scope of the Committee's investigation.
Conclusion
The Committee commenced its investigations of Judge
Bork on July 2 and completed its work on September 8, 1987. This
report was prepared after the latter date.
The majority of the Committee concluded that Judge Bork
is Well Qualified for appointment to the Supreme Court of the
United States, reasoning that his varied experience in virtually
all facets of the legal profession, his service as a ranking
public official and his high intellect place him among the best
available for appointment to the Court. A minority, not ready to
express this high degree of qualification, voted Not Opposed. A
larger minority concluded that the candidate is Not Qualified,
not because of doubts as to his professional competence and
integrity,* but because of its concerns as to his judicial
temperament, e. g., his 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.
One member of this group, however, also expressed

reservations concerning what that member considers
to have been inconsistent and possibly misleading
recollections of the chronology of the "Saturday
Night Massacre" expressed by the nominee in earlier
testimony before the Senate Judiciary Committee and
to members of our Committee in 1982 and recently.
86-974 0 - 8 9 - 4 2
1234
This report is being filed prior to our appearance at

the Senate Judiciary Committee's hearing. We will review our
report at the conclusion of the hearings, and notify you if any
circumstances have developed that require modification of our
views.
Respectfully submitted,
Harold, R'.. 'Tyler, Jr.
7587P
1235
1236
STANDING
COMMITTEE
ON
FEDERAL
JUDICIARY
What It Is and How It Works
AMERICAN BAR ASSOCIATION

1237
THE ABA'S STANDING

COMMITTEE ON
FEDERAL JUDICIARY
What It Is and How It Works
The Standing Committee on Federal

Judiciary of the American Bar Association has
been consulted by every President with re-
spect to almost every federal judicial appoint-
ment since 1952. Moreover, the U.S. Senate
through the Senate Judiciary Committee has
requested the opinion of the Committee on
every federal judicial nomination since 1948.
The Committee never proposes candidates
for the federal judiciary, believing that to do
so might compromise its evaluative function.
Rather, it considers prospective nominees re-
ferred to it by the Attorney General. Further,
the Committee restricts its review primarily to
issues bearing on professional qualifications.
Other entities such as nominating commis-
sions, the President, and the Senate may con-
sider other aspects of the prospective nom-
inee's qualifications.
The Committee evaluates the qualifica-
tions of persons considered for appointment
to the U.S. Supreme Court, the U.S. Courts of
Appeals, the U.S. District Courts and the U.S.
Court of International Trade. For historical
and practical reasons, the Committee's proce-
dures for appointments to the Courts of Ap-
peals, the District Courts, and the other lower
federal courts differ from those for Supreme
Court nominations and therefore are dealt
with separately below.
The Committee consists of fourteen mem-
1238
bers two members from the Ninth Circuit,

one member from each of the other eleven
federal judicial circuits and one member-at-
large. The members are appointed for stag-
gered three-year terms by the President of the
ABA. No member serves more than two terms.
As a condition of appointment to the Commit-
tee, each member agrees not to seek or accept
federal judicial appointment while on the
Committee and for at least one year
thereafter.
1239
I. APPOINTMENTS TO THE
DISTRICT COURTS, THE COURTS OF
APPEALS AND THE OTHER LOWER
FEDERAL COURTS
There are approximately forty vacancies on the Courts of Ap-

peals, the District Courts and the other lower federal courts each
year. Though not highly publicized outside the legal profession,
the Committee's evaluation of prospective nominees for these
courts provides its regular work load
A. Evaluation Criteria
The Committee's evaluation of prospective nominees to these
courts is directed primarily to professional qualifications com-
petence, integrity and judicial temperament.
In assessing a prospective nominee's professional qualifica-
tions, the Committee considers circumstances and factors which
range so widely that it would be difficult to provide a com-
prehensive catalogue. Professional competence encompasses
such qualities as intellectual capacity, judgment, writing and
analytical ability, industry, knowledge of the law and profes-
sional experience.
As to experience, the Committee believes that ordinarily a pro-
spective appointee to the federal bench should have been admit-
ted to the bar for at least twelve years. Substantial trial ex-
perience (as a lawyer or a trial judge) is important for prospective
nominees to both the appellate courts and the trial courts. Addi-
tional experience which is similar to court trial work such as ap-
pearing before or serving on administrative agencies or arbitra-
tion boards, teaching trial advocacy or other clinical law school
courses, etc. is considered in evaluating a prospective
nominee's trial experience qualifications. In exceptional cases,
when there is significant evidence of distinguished accomplish-
ment in the field of law, an individual with limited trial ex-
perience may be found qualified.
In evaluating experience, the Committee recognizes that
women and members of certain minority groups have entered
the profession in large numbers only in recent years and that
their opportunities for advancement in the profession may have
been limited
The Committee believes that political activity and public ser-
vice are valuable experiences, but that such activity and service
are not a substitute for significant experience in the practice of
law.
1240
In investigating temperament, the Committee looks to the pro-

spective nominee's compassion, decisiveness, open-mindedness,
sensitivity, courtesy, patience, freedom from bias and commit-
ment to equal justice, among other factors. The prospective nom-
inee's character, integrity and general reputation in the legal com-
munity are investigated, as are his or her industry and diligence.
Community and professional contributions are considered rele-
vant. Finally, the prospective nominee's health and age are con-
sidered. The Committee believes that the public is entitled to the
appointment to the federal judiciary of persons who are able to
render long jind vigorous service.The Committee does not investi-
gate the prospectfvenominee's political or ideological philosophy
except to the extent that extreme views on such matters might bear
upon judicial temperament or integrity.
The Committee feels that the same fundamental criteria pro-
fessional competence, integrity and temperament should be ap-
plied as a starting point for evaluating prospective nominees for
the appellate courts and for the trial courts. However, the Commit-
tee also believes that an appellate judge should have an unusual
degree of overall excellence that would provide an inspiration and
an example to trial judges. Without demeaning the scholarly
qualities necessary for the trial courts, the Committee nonetheless
looks for an especially high degree of scholarship and academic
talent in prospective nominees for the appellate courts. The
abilities to write lucidly and persuasively, to harmonize a body of
law and to give guidance to the trial courts for future cases are mat-
ters of great concern in the evaluation of prospective nominees for
the appellate courts.
Recognizing that an appellate judge deals primarily with rec-
ords, briefs, appellate advocates and colleagues(in contrast to wit-
nesses, parties, jurors, live testimony and the theater of the court-
room), the Committee may place somewhat less emphasis on the
importance of extensive trial experience as a qualification for the
appellate courts. This same contrast in day-to-day experience may
also cause the Committee to evaluate temperament for the ap-
pellate courts in slightly different terms.
B. Ratings
The Committee rates prospective nominees on the following
scale.
To be rated Exceptionally Well Qualified, the prospective
, nominee must stand at the top of the legal professsion in the
community involved and have outstanding legal ability, wide
experience and the highest reputation for integrity and tempera-
ment. In addition to preeminence in the law, the prospective
1241
nominee should have a reputation as an outstanding citizen,

having made important community and professional contribu-
tions in order to merit the sparingly awarded "Exceptionally
Well Qualified" evaluation.
To be Well Qualified, the prospective nominee must have the
Committee's strong affirmative endorsement and be regarded
as one of the best available for the vacancy from the standpoint
of competence, integrity and temperament.
The evaluation of Qualified indicates that it appears the pro-
spective nominee would be able to perform satisfactorily as a
federal judge with respect to competence, integrity and temper-
ament.
When a prospective nominee is found Not Qualified, it means
that the Committee's investigation indicates that the prospec-
tive nominee is not adequate from the standpoint of compe-
tence, integrity or temperament
C. The Investigation
After a judicial vacancy occurs and prior to any nomination to
that vacancy, the Chairman of the Committee receives one or
more names of prospective nominees for evaluation from the of-
fice of the Attorney General. The investigation of the prospective
nominee is usually assigned to the circuit member of the Commit-
tee in the judicial circuit in which the judicial vacancy exists,
although it may be conducted by another member, a former mem-
ber or a former chairman. (The individual making the investigation
is hereinafter referred to as the "circuit member.")
To each prospective nominee the Attorney General's office
sends a comprehensive ABA-designed questionnaire (called a Per-
sonal Data Questionnaire) that seeks wide-ranging information re-
lated to fitness for judicial service. The responses are sent to the
U S. Department of Justice, the ABA Committee Chairman and the
circuit member. Receipt of this document is usually the starting
point for the investigation. The circuit member makes extensive
use of it in his or her investigation. The prompt, thorough and ac-
curate preparation of a response to the Personal Data Question-
naire by the prospective nominee is extremely important to the in-
vestigation.
The circuit member examines the available legal writing of the
prospective nominee and conducts a large number of confidential
interviews with judges, lawyers, law professors and others who are
in a position to evaluate the prospective nominee's competence,
integrity and temperament. The circuit member interviews a repre-
sentative sample of the profession in the community, including at-
1242
torneys from different sized offices, attorneys who practice in dif-

ferent fields of law, law professors and deans, judges of different
courts, government attorneys, legal services and public interest at-
torneys, women attorneys and attorneys who are members of vari-
ous minority groups. Spokespersons of professional organizations
including those representing women and minorities are also con-
tacted. In addition, representatives of groups involved in the selec-
tion or evaluation of prospective nominees for the federal judi-
ciary are interviewed.
Sometimes a clear pattern emerges early in the interviews, and
the investigation can be briskly concluded. In other cases, conflict-
ing evaluations as to competence may be received, or questions
may arise as to integrity or temperament. In those instances, the
circuit member pursues the leads and problems as necessary to
reach a fair and accurate assessment of the prospective nominee.
This may involve a large number of interviews and other investiga-
tions, for example, the examination of trial transcripts and other
relevant records.
A meeting of the circuit member, and in appropriate cases one
or more other members of the Committee, is held with the prospec-
tive nominee. During the interview the circuit member raises any
adverse information discovered during the investigation and dis-
cusses it with the prospective nominee. The prospective nominee
is given a full opportunity to explain the matter and to provide any
additional information bearing on it. The circuit member also dis-
cusses with the prospective nominee his or her qualifications for a
judgeship. The circuit member may need to conduct additional in-
terviews in order to complete this stage of the investigation.
The circuit member then prepares a written informal report to
the Chairman containing a description of the prospective nom-
inee's background, summaries of all interviews conducted includ-
ing the interview with the prospective nominee, an evaluation of
the prospective nominee's qualifications and a recommended rat-
ing. After receiving the report and discussing it with the circuit
member, the Chairman makes an informal report to the Attorney
General's office. While protecting the confidentiality of those in-
terviewed, the Chairman passes on the substance of the report and
gives a tentative evaluation indicating that, if a formal report
is requested, the prospective nominee will probably be found
"Exceptionally Well Qualified," "Well Qualified," "Qualified" or
"Not Qualified."
If the office of the Attorney General requests the Committee to
prepare a formal or final report, the circuit member completes the
investigation as necessary. The circuit member then sends a writ-
ten formal report to all members of the Committee together with
the response to the Personal Data Questionnaire and any other
materials thought relevant by the circuit member. After studying
1243
the formal report and its enclosures, each member sends a vote to
the Chairman. If questions are raised, the Committee may discuss
the prospective nominee by telephone conference call or at a
meeting.
The Chairman confidentially reports the Committee's rating to
the office of the Attorney General If the Committee has been
unanimous in its rating, the report so states. Otherwise the report
reflects the rating given by a majority or substantial majority of the
Committee. If questions concerning the health of the prospective
nominee have been raised during the investigation, the Commit-
tee's rating may be conditioned upon the prospective nominee's
undergoing an independent medical examination.
If the President nominates the prospective nominee, a public
hearing is held by the Senate Judiciary Committee as the beginning
of the confirmation process. At the request of the Senate J udiciary
Committee, the ABA Committee submits its rating for the public
record and at the same time notifies the nominee of its rating Until
this stage of the process, the Committee does not make its rating
public unless authorized to do so by the Attorney General
If the Committee has found a prospective nominee "Not Quali-
fied," the question arises whether the President will nominate the
prospective nominee. Only in rare instances less than 1 percent
of the nominations has a President decided to nominate a person
found "Not Qualified" by the Committee In those circumstances,
the Committee will oppose the nomination in such ways as may be
appropriate under the circumstances
II. APPOINTMENTS TO THE

SUPREME COURT
It is extremely important to the Committee's effective evalua-

tion of prospective Supreme Court nominees that it be given suffi-
cient time to evaluate them in depth The procedures described
below have been followed recently and have allowed the Commit-
tee to afford significant assistance to the President in selecting a
weil-qualified appointee.
A. Evaluation Criteria and Ratings

The Committee's investigation of prospective nominees to the
Supreme Court is limited to their professional qualifications their \r
professional competence, judicial temperament and integrity.
While the same factors considered with respect to the lower fed-
eral courts are relevant to an appointment to the Supreme Court,
the Committee's investigation is based on the premise that the
1244
Supreme Court requires a person with exceptional professional

qualifications. yThe significance, range and complexity of the
issues considered by the~Supreme Court, the importance of the
underlying societal problems, the need to mediate^between.tradi-
tion and change and the Supreme Court's extraordinarily heavy
docket are among the factors which require a person of excep-
tional ability. To fulfill the responsibilities of a Supreme Court
J ustice, it is not enough that one be a fine person or a good lawyer.
The Committee's highest evaluation of a prospective nominee
to the Supreme Court Well Qualified is reserved for those who
meet the highest standards of professional competence, judicial
temperament and integrity. The persons in this category must be
among the best available for appointment to the Supreme Court.
The second category consists of those persons who are Not Op-
posed by the Committee. Such a person, while minimally qualified,
is not among the best available for the appointment and is not en-
dorsed by the Committee.
The third category consists of those who are Not Qualified with
respect to professional qualifications for appointment to the
o Supreme Court.
B. The Investigation
The Committee's procedures in evaluating a prospective
nominee are described below.
1. Members of the Committee across the nation interview those

likely to have information regarding the professional competence,
integrity and temperament of the person under consideration.
Those interviewed include federal and state court judges and their
law clerks, a cross-section of practicing lawyers, government law-
yers, legal services and public interest lawyers, law school profes-
sors and deans, officials of professional organizations and spokes-
persons representing women, minorities, the indigent, ethnic
groups and other interest groups.
2. A team of law school professors examines the legal writing
(opinions, briefs and articles) of the prospective nominee. Custom-
arily, thistask is accomplished by dividing the material into subject
matter categories and having it read by professors who are expert
in those areas. The law school teams are usually under the direc-
tion of a senior professor who reports the findings to the Commit-
tee. This aspect of the investigation, like the investigation as a
whole, is intended to weigh professional competence, not to assess
the ideology of the prospective nominee.
3. A team of practicing lawyers (which may include former
Supreme Court law clerks) also examines the legal writings of the
1245
prospective nominee as a valuable cross-check on the academic

evaluation.
4. Committee members discuss the prospective nominee with a
number of the most highly respected law school deans and with
the Chief Judges of the Circuits and other judges.
The results of the foregoing inquiries, together with the results of
comparable investigations of other prospective nominees, are
reported to the full Committee for discussion and evaluation.
These sessions are lengthy and searching and frequently result in
additional investigation.
The Committee's ratings of prospective nominees are reported
in confidence to the Attorney General Further evaluation and re-
ports may be provided as the President approaches a choice.
Once the President has made a nomination, the Senate Judiciary
Committee holds confirmation hearings. At the Senate Judiciary
Committee's hearings, a spokesperson for the ABA Committee ap-
pears and makes an extensive report on the reasons for the Com-
mittee's evaluation of the nominee, while preserving the confiden-
tiality of its sources. The Committee may submit a follow-up report
to the Senate Judiciary Committee or to the Senate as a whole if
new information is developed during the course of the hearing
which warrants comment or evaluation by the ABA Committee.
III. CONFIDENTIALITY
A persistent concern of the Committee in connection with its in-

vestigation of prospective nominees is confidentiality. This is parti-
cularly true with respect to Supreme Court appointments. A Su-
preme Court nomination is an event of substantial national inter-
est, and from the moment the vacancy occurs, many of the
nation's most able reporters are assigned to it.
The Committee seeks information on a confidential basis. No
member of the Committee discloses the name of anyone under in-
vestigation except to those being interviewed or assisting in the in-
vestigation, who are asked to keep the information confidential. It is,
however, inevitable that an extensive investigation will result in pub-
lic identification of the prospective nominee. Such public knowl-
edge is usually not harmful and may be beneficial in some circum-
stances in that it encourages investigation into the background and
personal history of the prospective nominee by other persons. It is in
the public interest to avoid an appointment without full information
about the appointee.
Public disclosure of the Committee's evaluation prior to its re-
port to the Senate Judiciary Committee after the nomination has
been made is more serious. The nomination process is a Presiden-
1246
tial function, and the President should be able to obtain a confi-

dential assessment of prospective nominees as an aid in making
the nomination. Moreover, prospective nominees not ultimately
nominated should be spared any embarrassment resulting from
the Committee's evaluations.
In investigations involving both the Supreme Court and the
other federal courts, it is essential that the Committee assure its
sources that their identities will not be revealed outside of the
Committee. It is the Committee's experience that only by assuring
and maintaining such confidentiality can sources be persuaded to
provide full and candid information.
IV. CONCLUSION
Through the cooperation of the executive and legislative

branches of our government, the ABA's Standing Committee on
Federal Judiciary has been able to play a useful role in helping to
promote a better federal judiciary. The Committee constantly
seeks to learn from its experiences and to refine and improve its
*" standards and procedures. To this end, the Committee welcomes
suggestions from members of the bar and the public.
1247
The CHAIRMAN. And I will say in conclusion of tonight's hear-
ingif I can steal a phrase from my friend from Wyoming. Go
ahead.
Senator THURMOND. Judge, there seems to be a widespread mis-
conception that the ABA speaks for most of the practicing lawyers
in the United States.
You understand I am a member of the ABA and I am proud of it,
and I have been a member I guess forwould you tell the commit-
tee what percentage of the nation's attorneys belong to the ABA.
Judge TYLER. If I understand you, your question is does this com-
mittee speak for every one of the members of the ABA. Is that
your question?
Senator THURMOND. Yes. I asked does ABA speak for most of the
practicing lawyers in the United States. How many members of the
ABA are there and how many lawyers are there in the United
States?
Judge TYLER. I do not think that all the lawyers we have in the
United States are members of the ABA. As I understand it, there
are now some 300,000 ABA members. I will get it to you from
somebody over here who knows.
There are 650,000 lawyers now in the United States of America.
Senator THURMOND. And how many ABA members?
Judge TYLER. 330,000 of those men and women are members of
the ABA.
Senator THURMOND. That is about half of them, then, isn't it?
Judge TYLER. I must say I am surprised, but this lady, this gen-
tleman know, and these are good figures, as I understand.
Senator THURMOND. Thank you.
The CHAIRMAN. If I can finish. A member of the committee,
during the Scalia hearing said: "The fact of the matter is, you, the
members of the standing committee and the federal judiciary have
a particular responsibility. You do it voluntarily. You take time
from your business and your office, and it costs you money, and
what you are doing you are doing because of the love of the law,
love of the bar association, love of integrity of justice in this coun-
try. It is a loss for you and your business to do it. You deserve com-
mendation", et cetera.
To paraphrase my friend from Wyoming, this is one of those
things when you like the outcome, the ABA is great, it is wonder-
ful. When you disagree with the outcome, the ABA made a mis-
take.
The fact of the matter is that I do not know how anyoneI think
we are splitting hairs a bit herewhen the rules and the ratings
here, we all know what they are and what they are not.
How anyone could say, that in investigating temperament, the
committee looks to a prospective nominee's compassion, decisive-
ness, openmindedness, sensitivity, courtesy, patience, freedom from
bias, and commitment to equal justice, among other factors?
It seems to me to be what it always has been. This is a process
whereby people look, all the members look in and determine
whether or not they believe, in a general, broad way, this person
should or should not be on the Court, and everybody brings to that
committee certain biases, but all of you are honorable women and
men, who in fact, based on everything I knowand I do not know
1248
many of the membersare peopleand based on my question to
you, you do not doubt that they arrived at the table with an open
mind, without any political agenda, but in fact trying to determine
what judicial temperament meant.
That seemed a pretty broad cut. And so I understand full well
and I respect those who are for all that has been said about those
who voted against.
The opposite could be said about those who voted for. Those who
voted for, what organizations do they belong to? Were they Repub-
licans? Did they ever contribute to the President? Did they support
anybody? I do not know the answer to any of those questions.
But the fact of the matter is everybody understands what is
going on here, and when you like the result, obviously, those who
oppose Judge Bork, they think the four who voted against and the
five who voted notwhatever the middle category iswere bril-
liant people.
And those who are for think those ten who voted forAnd one
last point I make. Judge, you and I should discloseI have talked
to you I think on three occasions, maybe fourbecause I, quote,
"warned you," that members both opposed and for the nominee
would want very much to go into detail about the minority views
herefor different reasonsbut they both wanted to go in great
detail.
You said something to me then, I believe, which you did not say
tonight. When I was pressing you to have someoneand for all I
know, one of you two were in the minority. I do not know for a fact
who was in the majority and minority. You have never told me
that. I know what I have read in the paper.
I have not spoken to anybody on the committee, so I do not know
for certain. But when I said bring someone who is in the minority
to speak, you made the following point to me, I believe.
You said that once that is done, then from that point on, the
notion that anyone who votes in the minority, in any future nomi-
nation, will know full well that they are going to be the target of
the affection of those who are for or against the nominee.
And that is when I backed off my insistence that the minority of
you be represented, or at least for you to assure me, if you were a
minorityand I am not asking you how you votedbut if you were
a minority, for you to say so, so there was a minority review repre-
sented.
I have been at least temporarily persuaded, that for us to insist
on the names of all the people and how they voted, and to have a
minority view represented, is something we should tread very light-
ly on as a committee, and I think it is something the ranking
member and I should take up.
He leaned over to me a moment ago, and said that he generally
thought that maybe we should not go into this. It is something we
are going to have to decide as a committee.
The Senator says he does not think they have to disclose their
votes, but that is a question we are going to have to decide here,
and then if we to seek that, we will call you back, and you will
have to decide then whether or not you will disclose.
But I have a half a dozen questions that I would like to submit in
writing for you.
1249
Senator THURMOND. I would like to say this, though.
The CHAIRMAN. Yes?
Senator THURMOND. Although I do not think you have to disclose
your votesI can see a situation could arise there, it would be un-
comfortableyet your rules say you do not consider ideology. If
you do not consider it, then it seems to me your members of this
committee ought to follow the rules, because you evidently do not
follow the rules when you discuss ideology.
I know you have tried to explain it, but I do not think you have
explained it away on that point.
The CHAIRMAN. If you would like to
Senator THURMOND. If you do not consider ideology, then do not
bring it up, and tell your members they cannot consider it.
Judge TYLER. Well, you see, that was my point in telling you and
the others that I welcomed Senator Metzenbaum's letter, to remind
ourselves whether we were going to vote one way, or another, that
we should not consider this.
At the same time, though, we cannot control what people we
interview say in response to our questions. So bear in mind that
just because we reported that people talked about ideology does not
necessarily mean that we were overborne sufficiently to go off and
rule only on ideology. I do not think that follows. Just keep that in
mind, sir, if you would.
The CHAIRMAN. I ask unanimous consent that the submission on
the minutes of a meeting with Judge BorkI am not sure if it is in
the record, but if they are not, it should be put in the record
given to us by the ABA. Only about 10 pages, Senator.
[Material follows:]
1250
AMERICAN BAR ASSOCIATION

GOVERNMENTAL AFFAIRS OFFICE
1800 M Slreet, N W
Washington, D C 20036-5886
(202) 331-2210
We asked him about the firing of Archibald Cox. He
explained, as he had in Bill Coletnan's interview five yearB
ago, that he first learned of the situation on that famous
Saturday afternoon, when the Attorney General asked to see
him. He went into the Attorney General's Office and Elliot
L. Richardson and William D. Ruckelshaus were talking about
whether they could fire Cox. Judge Bork said that he did not
immediately understand what they were talking about and they
explained that the President had ordered Richardson to fire
Cox because of his efforts to obtain the tapes. He said that
Richardson and Ruckelhaus had agreed between then that
neither of them could fire Cox because of personal commit-
ments that they had made to Congress. They asked Judge Bork
whether he felt he could fire Cox. After reflecting on it in
the fairly short period of time in which he had to make this
decision, he concluded that he could, but said that ha would
then resign. He said that both Richardson and Ruckelhaus
urged him not to do that - that the Department needed con-
tinuity. Judge Bork then explained his reasoning proceeB to
us in a little more detail. He said that the statutory line
of succession ended with him and that if he were to resign
then the President would appoint a new Attorney General. He
expected that that would have been Fred Buzhardt of the White
House staff. Judge Bork said that he was positive that if
that had happened, the entire top level of the Justice
Department would have resigned and the place would have been
in a shambles. A I B O it was by no means clear to him that
Buzhardt would have been committed to the continuance of the
investigation. Accordingly, Judge Bork decided the best
thing for him do do was to carry out the President's order,
but then make clear to the Watergate special prosecution
staff that he would fully support their investigation. He
said that after firing Cox, he met with Phil Lacovara and
1251
Hank Ruth, his two deputies, to insure then of his support
and the next day net with the entire staff to reiterate that
support. Ke told us that he also appeared in a press con-
ference in which he stated publicly that he would support the
efforts by the Watergate special prosecution staff to press
for the tapes.
Saturday Night Massacre
With respect to the legality of the President's
order to fire Cox, Judge Bork reiterated that he had fait at
the time that the President did have the authority. He said
that in the emotion of those tension packed few hours, he had
not focused on the regulation itself. Ha said that in the
discussions with Richardson and Ruckleshaus, the subject of
the regulation never was mentioned by anyone. He said that
he had revoked the regulation approximately 36 hours later
and felt at the tine that he, upon the President's order,
clearly had authority to do that. He commented that it
simply could not be that a regulation once promulgated by the
attorney general could not subsequently be revoked by him.
(In this respect he obviously disagreed with the conclusion
by Judge Gezell.)
We called his attention to the exerpt from Elliot
Richardson's book which said that the President had issued an
order disbanding the Watergate special prosecutor's staff and
directing the FBI to seal off access by the staff to their
offices.
Judge Bork said that to the best of his recollec-
tion there were no such orders. Judge Bork said that not
only was there no order disbanding this staff but that he,
Judge Bork, had gone to great lengths to assure that none of
the staff resigned. He said that he had met with Henry
Peterson on Sunday, just previous to meeting with Lacovara
and Ruth. He told Peterson that they had to praas forward

1252
with the investigation; that Bork'a professional career

depended on the investigation going forward with full force;
and expressed his concern to Peterson that Lacovara and Ruth
might resign. He said that he then met with Lacovara and
Ruth, urged them to stay and urged them to go ahead with the
investigation as they had been before. He said that he
thought the subject of the tapes had com* up and that he said
"yes". He recalls Lacovara expressing concern that the White
House might not let the investigation go on and that he
(Bork) replied that the investigation had to go on. He said
that on Tuesday he went with Peterson to meet the heads of
staffa group of approximately 12 to 14 people. He and
Peterson assured then that no one would fire then and that
they owed it to themselves to go on with the investigation.
(Judge Bork said that at one point Haig had asked him to fire
certain individuals on the Watergate special prosecutor's
staff and that he had refused.) He believes he was asked the
question as to whether they would be authorized to go for tha
tapes and he said yes.
Judge Bork said that on Wednesday he had a press
conference at which he was asked whether he would go for ths
tapes and ha said yes. He said that later that day he
received a call from Haig, who said "the President wants to
know what tha firing of Cox was all about".
With respect to the other comment in Richardson's
bookthat there was an order blocking the staff from their
officesJudge Bork said that he recollects that the order
1253
did not do that but rather prevented the staff from removing
documents from the offices. He said that on Saturday night
while he was at the White House, Haig had expressed concern
that members of this staff might take documents out of the
office and had asked Bork whether he (Haig) could call
Clarence Kelly and direct the FBI to prevent any such
removal. Judge Bork said that he said yas to that request.
We asked him why he thought such an order was necessary and
he said that it was a highly emotional, tension-packed

situation and no one was quite sure what anyone would do. He
said that the order only stayed into effect until the follow-
ing day.
With respect to the question of how quickly he
sought a new prosecutor, he said that there was a delay in
taking that step. He explained that he had no staffall of
Richardson's and Ruckelshaus1 staff had resignedand that it
took several days for him to evolve a program as to what he
would do next.
By reference to the Nina Totenberg program, Judge
Bork was also asked whether he had told Bill Coleman in 1982
that after the Cox firing he "immediately began searching for
another special prosecutor". Judge Bork said that he did not
recall saying that; that he did not think he would have said
it because several days had elapsed before he began such a
search; and that if he had said it, he must have meant it in
the sense of within several days rather than on Saturday or
Sunday.
1254
The CHAIRMAN. The Senator is worried about how much it is
going to cost.
And a letter to Senator Metzenbaum from Judge Tyler, and a
letter to Judge Tyler from Senator Metzenbaum.
1255
-8 PM2-.27 AMERICAN BAR ASSOCIATION Standing Committee on

and Member-al-Large Federal Judiciary
Roberta Fitke.Ji
1 Chase Manhattan Plaza 750 North Lake Shore Drive
New York, NY 10005
Chicago, Illinois 60611
FIRST CIRCUIT (312)988-5000
Ralph I Lancaster, Jr
One Monument Square
Portland, ME 04101
SECOND CIRCUIT
30 Rockefeller PlaM
New York, NY 10112
September 4, 19 87
THIRD CIRCUIT
leromel SheMack
Suite 3600
1600 Market Street
Philadelphia, PA 19103
Honorable Howard M. Metzenbaum
110 First Virginia Bank Tower
101 St Taurs Boulevard
Norfolk. VA23SI0
Washington, D.C. 20510-6275
FIFTH CIRCUIT
O n e W untie
One Shell Square
Dear Senator Metzenbaum:
SOthFbor
New Orleans, LA 70139
In response to your letter of August 26, permit
52 East Cay Street
me to report that the position of this Committee for many
Columbus. O H 43215 years has been and continues to be essentially as set
forth in the last two paragraphs of page 1 of your letter
Suite 4300
and running over to the top of page 2.
Chicago, IL 60611
EIGHTH CIRCUIT
lames W Hewitt In reviewing the history of the reports to the
PO Boe0268
Lincoln, NE 6BS01 Senate Judiciary Committee in connection with nominees for
the Supreme Court of the United States, it seems clear
I David Andrews
1900 Washington Bid.
that in order to best serve the interests of the Senate,
Seattle, WA 96101 this committee has sought, as it should, to focus its re-
Samuel L^vllkams
itmFioor ports and findings on the professional qualifications,
700 S Flower Street
.-JwerStree
Los Angeles. CA 9001 i judicial temperament and integrity of the candidates.
TENTH CIRCUIT Thus, this committee should not address the nominees' po-
James A. Clark
303 East 17th Avenue litical, ideological or philosophical views on specific
Suite 1100
Denver, CO 90203 issues, except to the extent that such matters might bear
ELEVENTH CIRCUIT on the aforesaid questions of judicial temperament or
M Roland NachmarUr integrity.
2 Dexter Avenue
P O Bon 78
Montgomery. AL 36104
DISTRICT OF COLUMBIA
Further, it would seem to follow that this com-
CIRCUIT 4 FEDERAL mittee should not specifically recommend to the Senate how
it should vote on confirmation of a given nominee. Paren-
1675 Eye Street. N W
thetically, I recognize that a report of the committee
Washington. DC 20006 finding a nominee Well Qualified might be construed by
BOARD OF GOVERNORS
LIAISON
some as equivalent to a firm recommendation to the Senate.
Yet, upon sober analysis, since the committee expressly
A 9202a disclaims any opinion upon issues which we assume that the
STAFF DIRECTOR
Wantland L Sandei |r Senate can and does consider, such a broad construction of
750 North Lake Shore Drive
Chicago, 1160611
any finding we might make would not be justified.
3T279M-56SS
STAFF ASSISTANT
Diane Livingston I trust this answers the questions posed in your
750 North Lake Shore Drive
Chicago, |L 60611 letter of August 26. If not, please let me know.
3f2/96-5701
Very truly yours.

1256

WASHINGTON. DC 20510-6276
JOSEPH R. BIOEN. XL. DEL. CHAIRMAN SUBCOMMITTEE ON ANTITRUST. MONOPOUES AND BUSI
EOWARO M. KENNEOY. MASS STROM THURMONO. S C HOWARD U . MCTSNBAuL. O H o u n u i

ROBERT C YRO W . V A ORRM 0 . HATCH. UTAH HOWARO M. METZENBAUM. OHIO. CHAIRMAN
HOWARD H METZENBAUM. OHIO ALAN K. SIMPSON. WYO. OENNIS OtCONCM. ARK. STROM THURMOND. S C.
DENNIS DfCONCM. ARIZ. CHARLES E. CRASSLEY. IOWA HOWELL HEHJH. ALA.
PATRICK J LEAHY. VT ARLEN SPECTER. PA PAUL SIMON. ILL.
HOWELL HEFUN ALA GORDON J HUMPHREY. H H. EOWARO U . KENNEDY. MASS
PAUL SIMON ILL. i m COMKIA OOU
August 26, 1987
Harold R. Tyler, Jr.

Chairman, Standing Committee on Federal Judiciary
of the American Bar Association
Patterson, Belknap, Webb and Tyler
30 Rockefeller Plaza
New York, New York 10112
Dear Mr. Tyler:
The Senate Committee on the Judiciary will soon consider the
nomination of Judge Robert H. Bork to be Associate Justice of the
Supreme Court. Because of the importance of the nomination, 1 believe
it is useful to clarify the role of the American Bar Association in
reviewing this nomination and in submitting a report to the Committee.
Traditionally, the ABA'S Standing Committee on Federal Judiciary
has submitted a report on the qualifications of a judicial nominee to
the Committee. For example, in the case of the nomination of William
Rehnquist to Jbe. Chief Justice, the ABA sent a letter dated July 29,
1986, to the Committee and represenatives of the ABA testified before
the Committee.
The July 29 letter contains this statement: "Consistent with its
long standing tradition, the Committee has not concerned itself with
Justice Rehnquist's general political ideology or his views on issues
except to the extent that such matters might bear on judicial
temperament and integrity." The identical statement was included in
the August 5, 1986, letter to the Committee regarding the nomination of
Judge Antonin Scalia to be Associate Justice. Both these letters
concluded with the statement that the nominees met the ABA standards
for "professional competence, judicial temperament and integrity" and
were well qualified.
In testifying before the Committee regarding the nomination of
Judge Scalia, the representative of the ABA stated: "I think we make it
very clear in the second paragraph of our letter that the committee's
evaluation of Judge Scalia is based on its investigation of bis
professional competence, judicial temperament, and integrity. We go on
to say consistent with its long standing tradition, the committee's
1257
investigation did not cover Judge Scalia's general political ideology

or his views on issues except to the extent that such matters might
bear on Judicial temperament or integrity." (Hearings before the
Judiciary Committee regarding the nomination of Judge Scalia, August
5-6, 1987, pp. 125-6.)
These statements indicate that the ABA Committee's report and
findings in the case of Judicial nominees, including nominees to the
Supreme Court, are limited to issues of professional qualifications,
judicial temperament and integrity. The ABA's findings necessarily do
not include all issues possibly relevant to confirmation. Thus, the
committee does not and could not take a position on the ultimate issue
of whether the nominee should be confirmed. Neverthless, the
representative of the American Bar Association in testifying about the
nomination of Justice Rehnquist stated that the Committee recommended
that the nominee be confirmed. Senator Thurmond asked: "Do you
gentlemen of the Committee recommend him to the Senate Judiciary
Committee to be approved by this Committee and the Senate?" Kr.
Lafitte on behalf of the ABA replied: "That is our recommendation,
sir." (See Hearings regarding the nomination of Justice Rehnquist, July
29-August 1, 1987, p. 129.)
Please clarify the position of the American Bar Association as to
whether its report and findings are limited to qualifications, Judicial
temperament and integrity or whether they encompass other issues that
may be relevant to confirmation, including the views the nominee holds
on basic questions of Constitutional interpretation. Also, please state
whether the American Bar Association nevertheless takes a position on
the ultimate issue of confirmation.
I would appreciate your reply at your earliest convenience. Thank
you for your assistance and cooperation.
1258
EXCERPT FROM WILLIAM COLEMAN'S MEMORANDUM ON

^ROBERT BORK FOR THE 1982 A.B.A. REPORT
Since Mr. Dork had played a significart part in the Saturday
Night Massacre and both Elliot Richardson and Bill Ruckelshaus
had talked about it in their interviews, I asked him about- the
Saturc'jy Niaht Mor.<-..icrL
He said that he camr into his office at the Department of Justice

on that Saturday to worV or a brief in a completely unrelated
matter. He knew that there had been attempts by Archibald Cox
to get certain material from the White House but he had no ide
n:. L U K except iur iûuu couc. ni. norr. gatu u n i pui

who was present, indicated thnt he would hnvc to resiqn rather
than fire Mr. Cox as he- had made o nimilnr commitment to the
Senate. After thinking about the problem, Mr. Bork concluded
that President Nixon had the constitutional riqht to fire any
person in the Executive Branch of the government and that he
(Bork) had not made any special commitment to the Senate.
Mr. Bork said that there was some discussion about whether the
commitment to the Senate made by Mr. Richardson and Mr. Ruckels-
haus had anything to do with their decision to resign ond that
they did not agree with Mr. Bork's decision to fire Mr. Cox, but
they agreed thnt if Mr. Bork believed that he should carry out
President Nixon'e order, there would at least be iomc continuity
for the Department of Justice. Mr. Bork said that he would fire
Mr. Cox if ordered to do so lr/ ihc Presid
then immediately resign as hi did not wi'.h t
Division and instructed him to dirry on the invcstiq.ninn. He

also said that he immediately started the search for a ne^ Special
Prosecutor
Mr. Bork did remind me that hi"; actions were challenqr-d in liti-
gation by Elizabeth lloltzman and some other membe 1 s of the Mouse
Judiciary Corruru ttcc. Judge Gcscll held that Mr. Cox was improperly
fired. He said that the Judne stated that the regulations adopted
by Mr. Rirhardson were bindinq on the Department so long as they
were still outstanding, that Mr. Bork should first have revoked
the regulations and then ho could have fired Mr. Cox. But since he
fired Mr. Cox first and thereafter revoked the regulations,
Mr. Bork violated the regulations (since the regulations provided
that such removal could be only for cause and there was no cause).
Nader v. Bork, 366 F. Supp 104 (D.D.C. 1973). On appeal to the
D.C. Circuit, it was held that the matter was moot and therefore
no decision wac rendered by the Circuit Court.
Mr. Bork pointed out that Alexander BicVcl, in an article in

The New RepublIC November 3, 1973, pp. 1 3-14,aarecd that
President Nixon hfld the constitutional right to fire Mr. Cox.
1259
The CHAIRMAN. And on an unrelated subjectnot an unrelated
subject. Unrelated to those two matters, the text of a telegram
from the Honorable Herbert Brownell, former Attorney General of
the United States, to me, dated September 20, 1987, requesting that
he have an opportunity to have his statement in support of the
nominee submitted to the record. That will be done.
[Submissions of Mr. Brownell follow:]
1260
TFXT OF A TELEGRAM FROM THE HONORABLE HERBERT BROWNELL, FORMER

ATTORNEY GENERAL OF THE UNITED STATES, TO SENATOR JOSEPH BIDEN
September 20, 19 87
Senator Joseph Biden
Chairman
Senate Judiciary Committee
Washington, D.C.
I have requested the opportunity to testify for Judge Bork and am
scheduled to appear before your Committee on Monday, September
21st, along with other former Attorneys General. Unfortunately,
T must be in Geneva, Switzerland, on that date on private legal
business, and am arranging to have my written statement submitted
to you and the Committee. I will appreciate it if you would have
the statement read and filed with the record of the Committee's
confirmation hearings.
Herbert Brownell
1261
STATEMENT BY
THE HONORABLE HERBERT BROWNELL
FORMER ATTORNEY GENERAL OF THE UNITED STATES
IN SUPPORT OF THE NOMINATION OF
JUDGE ROBERT BORK
TO BE AN ASSOCIATE JUSTICE
OF THE SUPREME COURT OF THE UNITED STATES
I appreciate the opportunity to testify before the Senate

Judiciary Committee in favor of the confirmation of the
appointment of Judge Bork as Associate Justice of the United
States Supreme Court.
Judge Bork, in my opinion, is highly qualified to hold the
position for which he has been nominated by President Reagan. He
possesses in full measure the high standards of personal
integrity and character, of judicial temperament, and of broad
professional, legal and judicial competence. These essential
qualifications appear to be conceded by allboth proponents and
opponents of confirmation.
The sole objection to Judge Bork's confirmation, so far as I
am aware, is to his ideology.
While I was Attorney General under President Eisenhower,
four persons were nominated to the Supreme Court by the President
on my recommendation, among others. They were confirmed after
favorable vote by this Committee. They were: Earl Warren, John
Marshall Harlan, William Brennan, and Charles Whittaker.
Members of this Committee will readily recognize that these
persons represented great diversity of ideology. President
Eisenhower believed, and acted upon the belief, that the Court's
membership should represent diverse ideological points of view.
In order to maintain public confidence in the Court--an unelected
bodyit is of great importance to have diverse points of view
represented. If the Senate should confirm only nominees with an
ideology that conforms to the Senate's prevailing ideology, it
would be a signal that the Senate wanted the Court to decide
Constitutional issues, not on an independent, judicial basis, but
on a political, ideological basis.
Such action by the Senate, carried to a logical conclusion,

would in my opinion violate the separation of powers doctrine
imbedded in the Constitution. Your predecessors on this
Committee led the Nation in rejecting the "Court packing" plan o*
yesteryear which was aimed at requiring ideological conformity on
the Court. The Committee should not now do indirectly what it
then refused to do directly.
Since Judge Bork meets the basic qualifications of Court

membershipcharacter, judicial temperament, and legal and
judicial skills and experienceI urge this Committee to act
favorably on his nomination.
Herbert Brownell
1262
The CHAIRMAN. Gentlemen, it is not a happy task you have. You
do it, as I understand, without remuneration. You do it because
you are devoted to the law. Sometimes I have liked what you have
done in the pastyou, in an editorial sensesometimes I have dis-
agreed with it. We will all just have to make our own judgments,
and with all due respect to the ABA, which I am a member, I do
weigh its considerations. As a matter of fact, if I understand it, you
do not formally recommend how we vote.
You do not say, "To the best of my knowledge, we recommend
you vote for or against," no matter what it is. You say just what
you say: well-qualified, no opinion, or not qualified, and, "It's up to
you folks to decide how you're going to vote."
That is how I view it, that is how we have viewed it for a long-
time. We appreciate the testimony and thank goodness, this hear-
ing is adjourned until tomorrow morning.
[Whereupon, at 10:54 p.m., the hearing was adjourned, subject to
the call of the chair. 1
86-974 (1316)

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S. HRG. 100-1011, Pt.

NOMINATION OF ROBERT H. BORK TO BE

COMMITTEE ON THE JUDICIARY

THE NOMINATION OF ROBERT H. BORK TO BE ASSOCIATE JUSTICE OF

SEPTEMBER 15, 16, 17, 18, 19, 21, 22, 23,

Serial No. J-100-64

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

For sale by the Superintendent of Documents, U.S. Government Printing Office

CHRONOLOGICAL LIST OF WITNESSES, QUESTIONING AND

Tuesday, September 22, 1987

Carrington, Frank, executive director, Victims' Assistance Legal Organi- PaKe

Materials Submitted for the Record

Materials Submitted for the Record

Bork, Judge Robert H.: Page

Mental Health Law Project: Pa

"Report on the Civil Liberties Record of Judge Robert H. Bork," Septem- Pa e e

Panel of Terrance Sandalow, Steven Frankino, Maurice Holland, Pa e

"Bork Thrives on Confrontation," Rochester Times-Union, August 14, Pa^e

Panel of Terrance Sandalow, Steven Frankino, Maurice Holland,

"Recommendation that Judge Robert Bork Not be Confirmed as an Asso- Pa e

TUESDAY, SEPTEMBER 15, 1987

JUDGE ROBERT H. BORK

ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

Mr. Chairman, distinguished members of the Senate

Committee on the Judiciary:

It is a high honor and rare privilege for me to return

to Capitol Hill and to appear before this distinguished

committee of the U.S. Senate.

Although I never had the privilege of serving as a

United States Senator, I did have the great honor of 25J

years as a member of the House. During my years in the

House, my nine months as President of the Senate and 2\ years

as President of the United States, I had an abiding respect

for the Senate, especially its unique and special

responsibilities under our Constitution. In addition, in my

28i years in the nation's capital I developed warm and

treasured friendships with members of the Senate, on both

sides of the aisle. I am pleased to see some of these

cherished friends on the panel on this occasion.

introducing the Honorable Robert Bork, Judge of the U.S.

Circuit Court of Appeals for the District of Columbia who has

been nominated by President Reagan for service as an

Associate Justice of the Supreme Court of the United States.

Under the Constitution, Article II, Section 2, the

President has the authority and responsibility of nominating

an individual for the position of Justice on the U.S. Supreme

of advice and consent for Presidential nominees to the

During my service in the Presidency, I had the

opportunity and the honor to propose to the Senate an

individual for confirmation to serve on our nation's highest

judicial body. I consider the nomination of a Supreme Court

Justice one of the most important responsibilities of a

President of the United States. It is vital that the nominee

selected be of unquestioned character, broad training in the

law, in-depth experience in the legal profession, and have a

capability to analyze the facts with objectivity and

articulate one's decision on the basis of law and the

Constitution. It was my honor and privilege as President to

confirmation. The then U.S. Attorney General, Edward Levi,