Bork Nomination Day 3, Part 2 - Sep 17, 1987

Transcript Text

  • Senator SIMPSON

    At 00:00:24
    1 minute

    Well, Mr. Chairman, I now know where everybody
    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 Chairman
    has been ultimately fair, not only in these hearings, but in everything
    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 minority.
    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.

  • The CHAIRMAN

    At 00:01:42
    2 seconds

    Thank you, Senator.

  • Senator SIMPSON

    At 00:01:44
    17 minutes

    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    A vacated court decision is just that—null, void, repealed, out the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
    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 colleagues,
    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 appropriate,
    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 times—the 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 relocation
    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 citizens,
    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 shocking—I cannot recall—anyway, you said that was an
    extraordinary decision, appalling decision. But nevertheless, it was
    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 citizens."
    It was a very confusing thing for this kid, at the age of thirteen.
    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 Sparkman—vice presidential candidate
    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.
    Everybody
    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 provided
    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 candidate
    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 affirmative
    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.
    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 nonexistent.
    That was Hubert Humphrey that said that. Hubert Humphrey
    said that about that bill. And then he said, too, is simply what the
    bill does—as was pointed out so earlier today—is simply to make it
    illegal, an illegal practice to use race as a factor of denying employment.
    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."
    Then—and 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 Negro—another 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 Government,
    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 anybody
    has ever quoted from the first two paragraphs of it, and I
    think that is disturbing. Because what you said there, in this article,
    in the Indiana Law journal—it 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 say—and 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 article,
    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 said—and 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:
    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 sentence.
    "These remarks are intended to be tentative and exp-loratory."
    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 think—at least it came to me—that 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 "chilling"—
    I love that phrase—it depends on where it hurts, and everything
    is chilling—chilling 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 provocative
    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 fortune
    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 Connecticut;
    nothing had ever been brought about it, and then they finally
    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

    At 00:18:56
    5 seconds

    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

    At 00:19:01
    1 second

    Why not? Obviously

  • Judge BORK

    At 00:19:02
    31 seconds

    NO. I am not speaking to you, Senator. No. I do not
    know how to disprove a statement like that. People have argued
    with me, and when they were right—I 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

    At 00:19:33
    4 minutes

    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 privacy—and 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 interested—you
    talk about the right to privacy in topical terms—I 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 machine
    was in proper working order." "Interestingly"—I am quoting—"
    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 funny—but 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, wherever
    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 gentleman who said that you were an agnostic—where is that lovely
    little thing—he said

  • Judge BORK

    At 00:23:50
    1 second

    He is a friend of mine, Senator.

  • Senator SIMPSON

    At 00:23:51
    59 seconds

    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 word—nobody else had used that
    word—interesting, how interesting—and then he said, "I am comfortable
    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 judging
    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 penalty—and I have not heard
    that come up.
    How much time do I have, Joe?

  • Senator GRASSLEY

    At 00:24:50
    1 second

    I asked him about the death penalty.

  • Senator SIMPSON

    At 00:24:51
    19 seconds

    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 Grassley,
    but I did not hear it.

  • Judge BORK

    At 00:25:10
    2 seconds

    Well, yes, we discussed it, I think.

  • Senator SIMPSON

    At 00:25:12
    1 second

    Did you? Okay.

  • Judge BORK

    At 00:25:13
    1 minute

    I argued as Solicitor General—I 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. Georgia.
    And what you find in the Constitution is not only no prohibition
    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

    At 00:26:57
    42 seconds

    Let me ask you another question. It was so interesting
    to me, especially in the advertising that swirls around
    America—and I have not found anybody yet who wants to take responsibility
    for it; I have talked to some groups who I thought were
    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

    At 00:27:39
    4 seconds

    That is correct. There was no allegation of racial
    discrimination of any kind in that case.

  • Senator SIMPSON

    At 00:27:43
    4 seconds

    Not one. And if there had been, what would
    you have done?

  • Judge BORK

    At 00:27:47
    9 seconds

    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

    At 00:27:56
    1 minute

    Let me ask you—I listened this morning as
    Senator Metzenbaum reviewed antitrust, and that was a law school
    seminar for me, because Senator Metzenbaum is our pro on antitrust
    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 to—in 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 majority—I 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 disagreement
    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 confirmation
    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

    At 00:29:39
    14 seconds

    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

    At 00:29:53
    2 seconds

    NO; all right. I agree with that.

  • The CHAIRMAN

    At 00:29:55
    1 second

    Without objection, the letter will be placed in
    the record.

  • Senator SIMPSON

    At 00:29:56
    1 minute

    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 article
    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 chairmen
    of the section—and I think there were 15—who 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 decisions
    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 know—the full statement.

  • The CHAIRMAN

    At 00:31:22
    2 seconds

    The full statement has been put in the record.

  • Senator SIMPSON

    At 00:31:24
    1 minute

    Yes, the entire letter, please, Mr. Chairman.
    Well, I see I have 2 minutes, so Mr. Chairman, I might respectfully
    request—I do not know what your scheduling is—but that we
    might have another round. I think there are several of us who
    would like—and I went too long, admittedly so—it 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 explanation—a 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
    women—and 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

    At 00:32:44
    31 seconds

    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

    At 00:33:15
    54 seconds

    Mr. Chairman, thank you very much.
    Judge Bork, I had to leave the Appropriations Committee and a
    few other things—I was chairing a subcommittee there—to 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 regarding
    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
    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

    At 00:34:09
    1 second

    None; it applies to everybody.

  • Senator DECONCINI

    At 00:34:10
    30 seconds

    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 interview—
    and that is this one of July 10th, 1987—are you familiar
    with that—the United States Information Agency

  • Judge BORK

    At 00:34:40
    4 seconds

    I do not recall it particularly. Maybe there is a copy
    around here someplace.

  • Senator DECONCINI

    At 00:34:44
    38 seconds

    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 is—and I do not want to take this out of
    context at all. You stated there, "I do not think the equal protection
    clause probably should have been kept to things like race and
    ethnicity."

  • Judge BORK

    At 00:35:22
    1 second

    Ethnicity, yes.

  • Senator DECONCINI

    At 00:35:23
    3 seconds

    Yes. Is that your position?

  • Judge BORK

    At 00:35:26
    31 seconds

    NO. This goes back to the discussion we had, Senator,
    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

    At 00:35:57
    2 seconds

    Yes. I saw that.

  • Judge BORK

    At 00:35:59
    48 seconds

    In that speech I was referring to a case which I
    frankly thought was a little odd. That was a case about—I forget; it
    was Idaho, I think—but 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

    At 00:36:47
    9 seconds

    But you would not—in your rational or reasonable
    test there, that would not fall into this area, that particular
    law

  • Judge BORK

    At 00:36:56
    2 seconds

    NO, no; you would examine it.

  • Senator DECONCINI

    At 00:36:58
    1 second

    YOU would examine it.

  • Judge BORK

    At 00:36:59
    15 seconds

    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

    At 00:37:14
    4 seconds

    Yes, I understand that. It does not make too
    much difference from the standpoint of what we are talking about.

  • Judge BORK

    At 00:37:18
    4 seconds

    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

    At 00:37:22
    4 seconds

    I understand.

  • Judge BORK

    At 00:37:26
    13 seconds

    They had a lot of evidence about differential drinking
    patterns and resultant troubles, automobile accidents and so
    forth, upon which they based that differential.

  • Senator DECONCINI

    At 00:37:39
    10 seconds

    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

    At 00:37:49
    9 seconds

    Oh, no, the standard applies. The question is whether
    there is a reasonable basis for having a differential drinking age
    of 3 years. Now, maybe there is; maybe there isn't.

  • Senator DECONCINI

    At 00:37:58
    2 seconds

    YOU don't have an opinion on that case?

  • Judge BORK

    At 00:38:00
    8 seconds

    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

    At 00:38:08
    25 seconds

    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

    At 00:38:33
    1 second

    Yes, that's correct.

  • Senator DECONCINI

    At 00:38:34
    2 minutes

    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 trivializing
    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 question
    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
    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 illegimate
    child could block the adoption of a child by withholding the
    consent. Now, that was a 4 to 5 decision with Justice Powell writing
    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 concerned.
    What I want to know is where you are.

  • Judge BORK

    At 00:41:30
    14 seconds

    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

    At 00:41:44
    4 seconds

    Did your office defend it? You mean, when
    you were Solicitor?

  • Judge BORK

    At 00:41:48
    1 second

    Yes.

  • Senator DECONCINI

    At 00:41:49
    1 second

    I don't know, sir.

  • Judge BORK

    At 00:41:50
    2 seconds

    Well, I think maybe we did. But anyway, no

  • Senator DECONCINI

    At 00:41:52
    2 seconds

    I mean, is that relevant?

  • Judge BORK

    At 00:41:54
    1 second

    NO.

  • Senator DECONCINI

    At 00:41:55

    Okay.

  • Judge BORK

    At 00:41:55
    1 second

    I am just curious.

  • Senator DECONCINI

    At 00:41:56
    2 seconds

    Fine. I would be glad to find out.

  • Judge BORK

    At 00:41:58
    2 seconds

    NO. I can find out. There is a casebook around here.

  • Senator DECONCINI

    At 00:42:00
    2 seconds

    I can, too, and I will be glad to find out and
    let you know.

  • Judge BORK

    At 00:42:02
    7 seconds

    It is not really relevant. Well, I can't tell from that
    whether I did or not. It just gives a date.

  • Senator DECONCINI

    At 00:42:09
    2 seconds

    Yes. Well, I am sorry I don't know the
    answer to that.

  • Judge BORK

    At 00:42:11
    10 seconds

    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

    At 00:42:21
    4 seconds

    NOW, let me ask you there, the reasonable
    basis test doesn't fall in any of those three in your judgement?

  • Judge BORK

    At 00:42:25
    1 second

    NO. It is a different methodology.

  • Senator DECONCINI

    At 00:42:26
    2 seconds

    Okay.

  • Judge BORK

    At 00:42:28
    32 seconds

    And people who use heightened scrutiny on a particular
    case may come out different ways. People who use intermediate
    scrutiny may come out different ways. It is a matter of judgement.
    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

    At 00:43:00
    2 seconds

    Rational basis is what they used?

  • Judge BORK

    At 00:43:02
    1 second

    Yes.

  • Senator DECONCINI

    At 00:43:03
    1 second

    The dissent used the rational basis?

  • Judge BORK

    At 00:43:04
    25 seconds

    Kaban or whatever it is, that is probably—you
    know, you could use the same thing and disagree with them. Now,
    I think in Frontiero, or at least as you described Kaban—I don't
    know the case—the 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 examined
    all the facts.

  • Senator DECONCINI

    At 00:43:29
    15 seconds

    SO I did misunderstand you yesterday. I
    gathered yesterday that your reasonable standard on cases involving
    sex discrimination, gender discrimination was similar to the rational
    basis. That is not the case?

  • Judge BORK

    At 00:43:44
    2 seconds

    NO. NO, it is not the lowest level of scrutiny.

  • Senator DECONCINI

    At 00:43:46
    5 seconds

    Okay. Now, is the reasonable standard test a
    fourth test?

  • Judge BORK

    At 00:43:51

    It is an entirely different methodology.

  • Senator DECONCINI

    At 00:43:51
    6 seconds

    We are talking about heightened, intermediate,
    rational, and now reasonable?

  • Judge BORK

    At 00:43:57
    1 minute

    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 purpose?
    Now, for example, I would think as far as gender is concerned
    you could get, using a reasonable basis test, results at least as favorable
    to women as you would using intermediate scrutiny. Because
    in our society, that is, as it has evolved—and 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 certain
    ways.
    The kinds of distinctions between men and women that are now
    allowable because reasonable are almost entirely based upon biological
    differences and whether the particular

  • Senator DECONCINI

    At 00:45:11
    2 seconds

    Isn't that the same as rational?

  • Judge BORK

    At 00:45:13
    15 seconds

    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

    At 00:45:28
    6 seconds

    Otherwise, you would apply the intermediate
    or the strict interpretation, or test standard?

  • Judge BORK

    At 00:45:34
    50 seconds

    I was trying to get away from the—as Justice Stevens
    did, and I think I like his position better—I 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 distinction,
    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 marketplace. So that they would have to prove that they were in the marketplace.
    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

    At 00:46:24
    12 seconds

    But, in Frontiero, the facts are that Rehnquist
    used the rational basis test.

  • Judge BORK

    At 00:46:36
    23 seconds

    I think he is probably—as I recall his cases and his
    testimony here before this committee, I think he is using this
    multi-tiers of analysis, strict scrutiny—he 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

    At 00:46:59
    6 seconds

    SO, you are not going to take to the Court, if
    you are confirmed, this three tiers?

  • Judge BORK

    At 00:47:05

    NO.

  • Senator DECONCINI

    At 00:47:05
    8 seconds

    YOU are going to take one tier? Both as to
    gender discrimination cases and race discrimination cases?

  • Judge BORK

    At 00:47:13
    1 second

    True.

  • Senator DECONCINI

    At 00:47:14

    IS that correct?

  • Judge BORK

    At 00:47:14
    1 second

    That is correct.

  • Senator DECONCINI

    At 00:47:15
    6 seconds

    SO you won't apply the strict interpretation
    to the race discrimination test?

  • Judge BORK

    At 00:47:21
    2 seconds

    Well, in race

  • Senator DECONCINI

    At 00:47:23
    2 seconds

    YOU are going to use reasonableness on everything
    is what you are saying?

  • Judge BORK

    At 00:47:25
    4 seconds

    Yes. But in race, almost no distinction I can think
    of is reasonable.

  • Senator DECONCINI

    At 00:47:29
    7 seconds

    Well, I agree with you vis-a-vis you would
    use the strict interpretation, or the strict standard.

  • Judge BORK

    At 00:47:36

    Yes.

  • Senator DECONCINI

    At 00:47:36
    4 minutes

    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 surrounding
    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 scrutinize
    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 acknowledge
    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.
    The question that I do have is how do you go about in determining
    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 national
    interest and any guaranteed individual freedom.
    I find this to be an interesting quote. It almost is—well, 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 nations
    in 1863, an incident in Philadelphia in 1902 in which a foreign
    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 involved
    in it—for 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 nonactivist
    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
    days—how do you rationalize this long historical basis for your decisions
    that seem to go far away from the original intent?

  • Judge BORK

    At 00:52:05
    2 seconds

    May I have the page number there, Senator?

  • Senator DECONCINI

    At 00:52:07
    2 seconds

    The page of the case?

  • Judge BORK

    At 00:52:09

    Yes.

  • Senator DECONCINI

    At 00:52:09
    3 seconds

    Just a minute, and I will get it for you. I will
    get you the case, I think.

  • Judge BORK

    At 00:52:12
    7 seconds

    I am trying to understand why you think I departed
    from the original intent, because I thought that is what I was talking
    about, for the most part.

  • Senator DECONCINI

    At 00:52:19
    7 seconds

    It is on page 1457.

  • Judge BORK

    At 00:52:26
    42 seconds

    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 describing
    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 did—by the way

  • Senator DECONCINI

    At 00:53:08
    4 seconds

    But on the other hand, it supported the Government's
    position, that the Government wanted

  • Judge BORK

    At 00:53:12
    5 seconds

    This Congress' position. This Congress passed the
    statute

  • Senator DECONCINI

    At 00:53:17
    4 seconds

    And who signed the statute? I assume it is
    the law of the land, right?

  • Judge BORK

    At 00:53:21
    1 second

    Pardon me?

  • Senator DECONCINI

    At 00:53:22
    1 second

    It is the law of the land.

  • Judge BORK

    At 00:53:23

    That is right.

  • Senator DECONCINI

    At 00:53:23
    2 seconds

    I mean, it is not just the Congress.

  • Judge BORK

    At 00:53:25
    3 seconds

    That is right. The President signed the statute. But
    I mean, this statute was framed

  • Senator DECONCINI

    At 00:53:28
    1 second

    All right. Go ahead.

  • Judge BORK

    At 00:53:29
    1 minute

    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 congregating
    there. And it has therefore both aspects. One is the
    aspect of protecting the security of the embassy, and we had affidavits
    about the difficulty—if we allow people right up close to the
    embassy, it becomes almost impossible for the police to protect the
    security of the embassy—and the aspect of insult to the ambassador
    and his staff. And that is what Congress had in mind.
    Those are deeply-rooted in our constitutional tradition. The framers
    were worried about insult to ambassadors. The Continental
    Congress, as you pointed out, was worried about it. In fact, one
    reason—not a major reason, but one reason—I think, for a Constitutional
    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 explicitly
    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

    At 00:55:07
    21 seconds

    Well, my concern, Judge Bork, is that in
    your original intent as I understand it, you look to the circumstances
    when the amendment was passed, the intent of the framers,
    and here, I am concerned that here you looked at a letter written
    by Millard Fillmore in 1851, which is certainly not the time of
    the amendment

  • Judge BORK

    At 00:55:28
    1 second

    Oh, I see, I see.

  • Senator DECONCINI

    At 00:55:29
    40 seconds

    the time of the amendment; an article
    written on the law of the nations in 1863; an incident in Philadelphia
    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 intentor
    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
    do—you 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

    At 00:56:09
    1 minute

    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
    the British government in 1794 because of a riotous assembly
    before the house of a foreign council, and the opinion of the Attorney
    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 intellectual
    tradition in the law, right down to the present day, and that is
    why I went

  • Senator DECONCINI

    At 00:57:22
    11 seconds

    SO you used current history, or more current
    history, to attempt not to go to the original intent, but to substantiate
    that that original intent has been followed; is that what you
    are saying?

  • Judge BORK

    At 00:57:33
    1 second

    Yes, yes.

  • Senator DECONCINI

    At 00:57:34
    13 seconds

    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

    At 00:57:47
    20 seconds

    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 practice
    under the Constitution down to his day to show that that supported
    his understanding of the original intention.

  • Senator DECONCINI

    At 00:58:07
    2 minutes

    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 supervisor
    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
    stated—and 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 offensive,
    and it must be said, given the powers of military supervisors over their inferiors,
    to enhance the possibility of homosexual seduction.
    Then you go on in that opinion—which I am sure you are familiar
    with; you did not write it that long ago, and I read it with some
    interest—you 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

    At 01:00:14
    2 seconds

    NO, Senator. Do you mean the discussion of the privacy
    cases?

  • Senator DECONCINI

    At 01:00:16
    2 seconds

    That is right; yes, sir.

  • Judge BORK

    At 01:00:18
    19 seconds

    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

    At 01:00:37
    1 second

    That is why you answered every one of those
    cases?

  • Judge BORK

    At 01:00:38
    2 seconds

    Yes, I did.

  • Senator DECONCINI

    At 01:00:40
    12 seconds

    And the Vinson case versus the Dronenberg
    case, do you recall the difference in there that you did not answer?
    Is that the same reason—they did not cite any privacy in the
    Vinson case?

  • Judge BORK

    At 01:00:52
    18 seconds

    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

    At 01:01:10
    1 second

    YOU did not hear any arguments on the
    Vinson case

  • Judge BORK

    At 01:01:11
    17 seconds

    NO, no. What I was saying was that the panel opinion
    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

    At 01:01:28
    22 seconds

    SO it is fair to say, going back to the Dronenberg
    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 yourself,
    you would not yourself embark on such discussions?

  • Judge BORK

    At 01:01:50
    7 seconds

    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

    At 01:01:57
    6 seconds

    YOU only do that when the cases are specified
    in the material brought before you; is that what you are
    saying?

  • Judge BORK

    At 01:02:03
    24 seconds

    Yes, except—I should make this qualification. If I
    answer the cases, and that sort of brings to mind another argument
    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

    At 01:02:27
    5 seconds

    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

    At 01:02:32
    4 seconds

    Well, it may be.

  • Senator DECONCINI

    At 01:02:36
    2 seconds

    I read it, but I could not understand why it
    was there.

  • Judge BORK

    At 01:02:38
    5 seconds

    Oh, that was entirely what the argument was about.

  • Senator DECONCINI

    At 01:02:43
    4 seconds

    Thank you, Mr. Chairman. My time is about
    up, and I am going to go vote.

  • The CHAIRMAN

    At 01:02:47
    3 seconds

    Senator Grassley?

  • Senator GRASSLEY

    At 01:02:50
    13 seconds

    Thank you, Mr. Chairman.
    Judge BORK, once again, this starts my second round of questioning,
    and I think I ought to begin—can you hear me

  • Judge BORK

    At 01:03:03
    1 second

    Oh, yes.

  • Senator GRASSLEY

    At 01:03:04
    5 minutes

    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 questioning;
    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 committee
    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 history
    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 anybody
    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 obviously
    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 questions.
    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 students
    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 ideologue,
    with a closed mind on a whole host of legal issues. Just yesterday,
    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.
    Of course, I guess maybe lawyers—and I am not a lawyer, as you
    recall—may call this "arguing the alternative." In politics, we call
    it "having it both ways".
    What really needs to be said is almost self-evident—that 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 yesterday,
    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 application
    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

    At 01:08:32
    30 seconds

    Yes, it does, Senator. I point out that I wrote extensively
    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 protect,
    as circumstances and technologies change around us.

  • Senator GRASSLEY

    At 01:09:02
    11 seconds

    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

    At 01:09:13
    1 minute

    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 threatened
    by some new development in the law or in society or in technology
    today. And then he makes the old freedom effective today in
    these new circumstances.
    That is going to mean changing legal doctrine, evolving legal doctrine,
    in order to protect the original value or freedom that the
    framers and ratifiers of the Constitution wanted to protect.

  • Senator GRASSLEY

    At 01:10:29
    15 seconds

    But you have to contrast, then—am I right—
    the evolution of rights in the Constitution with what you might
    call the wholesale creation of totally new rights?

  • Judge BORK

    At 01:10:44
    13 seconds

    Oh, that is right. The freedom, the value, to be protected
    by the judge is always the lawmakers, in this case, the ratifiers,
    of the Constitution, and not the judges' values.

  • Senator GRASSLEY

    At 01:10:57
    43 seconds

    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 supporting
    that result.
    I think this is, at least what I sense as the essence of your judicial
    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

    At 01:11:40
    55 seconds

    A judge has power over people, and it is important,
    since he is unelected and probably unrepresentative of the American
    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

    At 01:12:35
    7 seconds

    IS the public following the Court's opinions
    the rationale behind this?

  • Judge BORK

    At 01:12:42
    39 seconds

    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 legitimately.
    It is also an essay, in a sense, to other people who may be affected
    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

    At 01:13:21
    10 seconds

    Well, what you say about results on the one
    hand versus reasoning on the other, to put you in proper perspective,
    is nothing out of the ordinary, is it?

  • Judge BORK

    At 01:13:31
    29 seconds

    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 Justice
    Story. That is an old and hallowed tradition in the law.

  • Senator GRASSLEY

    At 01:14:00
    10 seconds

    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

    At 01:14:10
    4 seconds

    Well, I think that is true.

  • Senator GRASSLEY

    At 01:14:14
    46 seconds

    Over the past few weeks, I have seen some socalled
    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 concluded
    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 Government
    always wins, and on and on and on.
    Are you familiar with these studies, done by Ralph Nader's
    groups and others?

  • Judge BORK

    At 01:15:00
    12 seconds

    I have to say—and I hope I do not hurt anybody's
    feelings, Senator, that I did not read those studies. But I am familiar
    with what they say, and I think that

  • Senator GRASSLEY

    At 01:15:12
    3 seconds

    Well, I do not think that matters. I think you
    can answer my question.

  • Judge BORK

    At 01:15:15
    1 second

    Oh, sure, sure.

  • Senator GRASSLEY

    At 01:15:16
    25 seconds

    Let me ask you to return a minute, if I could,
    to your days as a law professor—and 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 them—you read the newspapers and have
    some idea of what they are talking about.

  • Judge BORK

    At 01:15:41
    1 minute

    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 day—I cannot remember now how it came
    up—a Senator was pointing out—maybe it was Senator Humphrey,
    but I am not sure—was pointing out a number of decisions in
    which I voted for the individual against the corporation or the individual
    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 later—I just keep forgetting to do it—if 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

    At 01:16:49
    32 seconds

    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 conveniently
    skip over all the reasoning in-between.

  • Judge BORK

    At 01:17:21
    32 seconds

    Well, they conveniently skip over even who the parties
    were, because they say, well, he voted for—I 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

    At 01:17:53
    10 seconds

    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

    At 01:18:03
    5 seconds

    Well, it would not be a passing grade, Senator; it
    would not be.

  • Senator GRASSLEY

    At 01:18:08
    10 seconds

    I take it that you are willing to let your spotless
    record on appeal to speak for the power of the reasoning in the
    cases that you have participated in?

  • Judge BORK

    At 01:18:18
    14 seconds

    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

    At 01:18:32
    36 seconds

    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 fundamentally
    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 Washington
    Post, to find it suggested by your opponents that you are itching
    to overrule Boiling v. Sharpe and bring back segregated schools
    to the District of Columbia.

  • Judge BORK

    At 01:19:08
    1 minute

    Oh, that is absolutely preposterous. Nobody is going
    to pass, in the first place—this Congress is not going to pass a statute
    segregating the schools in the District of Columbia. If this Congress,
    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 might—I 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

    At 01:20:31
    9 seconds

    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

    At 01:20:40

    Well, you know, it is funny; I did see one brief comment
    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 directly
    whether I was, and I said no. All of a sudden, I am denying
    things nobody has brought up. That is ridiculous.

  • Senator GRASSLEY

    At 01:18:59
    2 minutes

    If I could move on, Judge Bork, I would like
    to talk about something we have heard a lot about.

  • The CHAIRMAN

    At 01:21:04
    4 seconds

    Excuse me. Judge, where did that appear?

  • Judge BORK

    At 01:21:08
    9 seconds

    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

    At 01:21:17
    3 seconds

    YOU have a right to be upset if that is true, because
    I recall specifically your being asked that.

  • Judge BORK

    At 01:21:20
    11 seconds

    Being asked; I was asked that, yes. As I recall, the
    story said that I denied it, though I was not accused—which sounds
    like, "The guilty flee where no man pursueth." But I was asked the
    question.

  • The CHAIRMAN

    At 01:21:31
    5 seconds

    YOU were, in fact, asked the question.

  • Senator GRASSLEY

    At 01:21:36
    25 seconds

    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

    At 01:22:01
    2 minutes

    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 dominating
    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
    speech—it is in a footnote somewhere, if I cannot find it now—I 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 demanded
    by the Constitution, but the courts have required as a prudential
    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 know—he points
    out that my views on standing are almost identical to Lewis Powell's.
    And indeed, I was following some Lewis Powell opinions. And
    when I wrote a standing opinion, Justice O'Connor quoted my opinion
    in her next opinion, so that

  • Senator GRASSLEY

    At 01:24:14
    33 seconds

    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

    At 01:24:47
    2 seconds

    Well, it is entirely the same. In this

  • Senator GRASSLEY

    At 01:24:49
    1 second

    Entirely the same?

  • Judge BORK

    At 01:24:50
    1 second

    Well, as far as I can tell. I mean

  • Senator GRASSLEY

    At 01:24:51
    4 seconds

    Well, yes. I just want to emphasize it; I am
    not disagreeing with you.

  • Judge BORK

    At 01:24:55
    1 minute

    Well, I cannot say that we would never disagree on
    a standing case, but the analysis is entirely the same.
    Let me say in this opinion I wrote, Barnes v. Kline, I said I reasoned
    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 limitations
    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

    At 01:26:05
    20 seconds

    I have just one follow-up question on standing,
    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

    At 01:26:25
    5 seconds

    No. I agree with the Court's line of rulings in recent
    years.

  • Senator GRASSLEY

    At 01:26:30
    1 second

    Okay. Senator Hatch?

  • Senator HATCH

    At 01:26:31
    1 minute

    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 media—100 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 President
    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 School—just to mention
    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.

  • The CHAIRMAN

    At 01:27:45
    6 seconds

    Without objection.
    The Senator has about 8 or 10 minutes left.

  • Senator GRASSLEY

    At 01:27:51
    56 seconds

    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 legislation
    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 because
    I think it is overly broad, and it infringes upon some of our
    basic civil rights, the first amendment freedoms of speech and assembly.
    And even worse, Judge, I think it has been a law that has
    been selectively enforced.

  • Judge BORK

    At 01:28:47
    7 seconds

    May I say, Senator—because that is a good point—
    there was no allegation of selective enforcement in Finzer v. Barry.

  • Senator GRASSLEY

    At 01:28:54
    1 second

    There was not?

  • Judge BORK

    At 01:28:55
    6 seconds

    NO. Nobody attacked the law on grounds of selective
    enforcement. That would have produced a different case.

  • Senator GRASSLEY

    At 01:29:01
    1 minute

    Okay. Well, at this point, because of congressional
    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 constitutionality
    of the ordinance as challenged by a group of protestors
    who were arrested in front of the Soviet and Nicaraguan Embassies.
    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 example—and this is what I really resent as far as
    the District law is concerned—in 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 danger—or, let me put it this way—I 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

    At 01:30:38
    42 seconds

    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 opinion
    merely says that for the reasons given, I think this law is constitutional.
    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 law—not at all. That is a power given to Congress by
    article I.

  • Senator GRASSLEY

    At 01:31:20
    1 minute

    Judge Bork, this morning you cited the Supreme
    Court's Chadha case, which struck down a version of the
    legislative veto. My interest in the legislative veto has been longterm
    in the 12 years I have been in Congress—making greater use
    of it, preserving it. I do not like the Chadha case. I have to live
    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 sometimes,
    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 constitutional?

  • Judge BORK

    At 01:32:28
    24 seconds

    Offhand, I really should not talk about that, Senator,
    because I might get a case like that on either court I am on.
    But certainly, those are two elements that Chadha discusses—lack
    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

    At 01:32:52
    32 seconds

    Okay. Well, let us just say from your perspective,
    serving on the D.C. Circuit, you have occasion to review many
    decisions by regulatory agencies. So I am wondering if that perspective—
    seeing what agencies do, how they do it, how some of
    what they do is contrary to the intent of Congress—because I think
    the courts give great deference to that—does that give you any
    philosophical position on the concept of legislative veto, if you
    could speak generally to that point?

  • Judge BORK

    At 01:33:24
    33 seconds

    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

    At 01:33:57
    32 seconds

    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 delegation—by the Congress to agencies—of
    the details of statues, while still allowing for the retention, by Congress,
    of some control over this process?

  • Judge BORK

    At 01:34:29
    25 seconds

    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

    At 01:34:54
    48 seconds

    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 views—regarding your overall philosophy
    of giving deference to the legislative process—because the
    place where democracy is best exercised is in the parliamentary
    bodies. I would, in turn, ask you to consider our changing circumstances
    and the limits of what the modern Congress can do through
    statute; that Congress cannot write laws as technically correct as
    you have described during this discussion today.

  • Judge BORK

    At 01:35:42
    3 seconds

    I agree there is a problem, Senator.

  • The CHAIRMAN

    At 01:35:45
    3 minutes

    Thank you, we will now take a 5-minute recess.
    [Brief recess]
    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.

  • Judge BORK

    At 01:38:58
    4 seconds

    All right.

  • The CHAIRMAN

    At 01:39:02
    4 seconds

    Senator Leahy.

  • Senator LEAHY

    At 01:39:06
    48 seconds

    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

    At 01:39:54
    3 seconds

    I don't know, Senator, I hadn't kept count that way.
    It could well be correct.

  • Senator LEAHY

    At 01:39:57
    9 seconds

    I believe it is. At this point cert, has been granted,
    but the case has not been decided by the Supreme Court.

  • Judge BORK

    At 01:40:06
    2 seconds

    That's correct, Senator. It has not been argued yet.

  • Senator LEAHY

    At 01:40:08
    3 seconds

    And if you were to serve on the Supreme Court,
    you would not be able to sit on that case anyway.

  • Judge BORK

    At 01:40:11
    7 seconds

    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

    At 01:40:18
    33 seconds

    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 Congress,
    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 government.
    Is that, in laymen's language, basically what it says?

  • Judge BORK

    At 01:40:51
    26 seconds

    Well, in laymen's language, that's right; it says you
    may not—let me see if I can find it. The congregation aspect—you
    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 government,
    that's right.

  • Senator LEAHY

    At 01:41:17
    6 seconds

    YOU could, however, display a placard which was
    supportive of that government.

  • Judge BORK

    At 01:41:23
    1 second

    That's correct.

  • Senator LEAHY

    At 01:41:24
    50 seconds

    It's interesting, because really what you do with
    such a statute is an unusual twist. Let's just use—and I am not
    asking you for some kind of a declaratory judgment on this—but
    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 Government
    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

    At 01:42:14
    4 seconds

    Under the statute, that is correct.

  • Senator LEAHY

    At 01:42:18
    21 seconds

    In some ways—and I realize this matter is up
    before the Supreme Court, and they will have to decide it—in some
    ways I would find that virtually unconstitutional on its face in allowing
    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 embassy—and I can understand that.

  • Judge BORK

    At 01:42:39
    26 seconds

    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 suppose—I'm not passing on the constitutionality again of a
    hypothetical statute—but Congress would certainly be free now or
    any other time to say no expression of opinion about a foreign government
    may be had within 200 feet, 300 feet, whatever.

  • Senator LEAHY

    At 01:43:05
    11 seconds

    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

    At 01:43:16
    14 seconds

    Americans can say anything they want to about
    Iraq, anything hostile they want to say about Iraq or any other foreign
    government, or this government, the U.S. Government—just
    not within 500 feet of the embassy of that government. But the rest
    of the country .

  • Senator LEAHY

    At 01:43:30
    18 seconds

    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 anything
    within a certain distance; but to say you can say some things
    but not other things—that I find of great concern.

  • Judge BORK

    At 01:43:48
    14 seconds

    It is a matter of concern, I agree with you about
    that—and 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

    At 01:44:02
    2 minutes

    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 work—certainly that was the thing
    stressed to me in the first law firm I went to after I left Georgetown
    and went back home. That tradition wasn't always observed,
    but it should be, because it's more than a tradition—it s an obligation.
    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
    calls for every lawyer, regardless of professional prominence or professional
    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 education
    program."
    What we asked you was what you have done to make legal services
    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
    Ellis—that'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

    At 01:46:18
    3 seconds

    There may have been—I didn't know of any.

  • Senator LEAHY

    At 01:46:21
    1 second

    But you didn't.

  • Judge BORK

    At 01:46:22
    28 seconds

    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 because
    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

    At 01:46:50
    24 seconds

    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

    At 01:47:14
    4 seconds

    NO, I suppose I could have asked for time to do it.

  • Senator LEAHY

    At 01:47:18
    2 seconds

    Are you proud of the fact that you didn't do any
    pro bono work?

  • Judge BORK

    At 01:47:20
    15 seconds

    NO, I didn't, I'm not proud of it. The things I specialized
    in would not have been very useful in pro bono work—I
    would have had to learn a new area of law. But that's not an
    excuse for not doing it.

  • Senator LEAHY

    At 01:47:35
    8 seconds

    Let me ask you about that. You are an expert in
    constitutional law.

  • Judge BORK

    At 01:47:43
    17 seconds

    When I was in the firm, I didn't do any constitutional
    law; I was doing major litigation, which means two-thirds of
    it was antitrust law, and other forms of litigation that were protracted
    and expensive. I had no contact with constitutional law
    until I began to teach it.

  • Senator LEAHY

    At 01:48:00
    10 seconds

    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?

  • Judge BORK

    At 01:48:10
    15 seconds

    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 themselves
    to it, and I didn't think about it—and I should have.

  • Senator LEAHY

    At 01:48:25
    36 seconds

    The reason I ask these questions—I 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

    At 01:49:01
    17 seconds

    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

    At 01:49:18
    13 seconds

    Your most significant clients are, what, General
    Motors, General Atomic, Shell Oil? These are huge corporations.

  • Judge BORK

    At 01:49:31
    21 seconds

    Oh, I had clients like the local distributor—a local
    distributor of electronic products in New Haven who was having
    trouble with a major corporation. I gave them an antitrust complaint
    on his behalf, and they came back and settled.

  • Senator LEAHY

    At 01:49:52
    3 seconds

    Let me ask you about the time you were at Yale.

  • Judge BORK

    At 01:49:55
    3 seconds

    That was while I was at Yale.

  • Senator LEAHY

    At 01:49:58
    5 seconds

    Let me go on that. How much pro bono work did
    you do when you were at Yale?

  • Judge BORK

    At 01:50:03
    2 seconds

    I didn't do any pro bono work at Yale, Senator.

  • Senator LEAHY

    At 01:50:05
    2 seconds

    Again, why not?

  • Judge BORK

    At 01:50:07
    16 seconds

    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

    At 01:50:23
    4 seconds

    Prior to going to Yale, you had not had involvement
    with constitutional law, but at Yale you did.

  • Judge BORK

    At 01:50:27
    1 second

    That's right.

  • Senator LEAHY

    At 01:50:28
    2 seconds

    YOU were an expert, you taught constitutional
    law.

  • Judge BORK

    At 01:50:30
    3 seconds

    Correct.

  • Senator LEAHY

    At 01:50:33
    15 seconds

    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

    At 01:50:48
    3 seconds

    NO, I was never approach for pro bono work.

  • Senator LEAHY

    At 01:50:51
    6 seconds

    YOU never volunteered your own expertise as a
    constitutional authority for pro bono work?

  • Judge BORK

    At 01:50:57
    1 second

    NO.

  • The CHAIRMAN

    At 01:50:58
    1 second

    Senator, I think he's answered that question.

  • Senator LEAHY

    At 01:50:59
    9 seconds

    Let me ask you this question. Was it because you
    did not have time, the inclination, or were not asked?

  • Judge BORK

    At 01:51:08
    17 seconds

    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

    At 01:51:25
    2 seconds

    It's not a matter of time.

  • Judge BORK

    At 01:51:27
    17 seconds

    No, you can always stop doing one thing and do another
    thing.

  • Senator LEAHY

    At 01:51:44
    39 seconds

    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
    critical—as a number of us have pointed out, and you have—of 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 Supreme
    Court has applied over the past 30 or 40 years.

  • Judge BORK

    At 01:52:23
    3 seconds

    Well, let me—I'm sorry, you weren't finished with
    the question?

  • Senator LEAHY

    At 01:52:26
    1 second

    That's all right.

  • Judge BORK

    At 01:52:27
    1 minute

    What I said yesterday, I hope, and what I said this
    morning was that in a variety of areas, had the legal theories I espoused,
    had the law developed along those lines—I'm not talking
    about the political speech doctrine or idea now—I could have accepted
    it. For example, I talked about Brandenburg v. Ohio, and
    what I said—and 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 constitutionality—I have no
    problem with that. I am talking about the advocacy of law violation
    which is not aimed at framing a constitutional test. The difference
    between what I said and what Brandenburg said is this: Brandenburg
    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 advocacy
    of law violation, even if the violation wasn't imminent.
    Brandenburg added to that only the qualification that the law violation
    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

    At 01:54:11
    8 seconds

    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

    At 01:54:19
    22 seconds

    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

    At 01:54:41
    9 seconds

    Brandenburg, of course, was decided in 1969.
    Your Indiana Law Review article, which pretty well rejects it, was
    in 1971.

  • Judge BORK

    At 01:54:50
    1 second

    Yes.

  • Senator LEAHY

    At 01:54:51
    1 minute

    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 Solicitor 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 indirect
    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 business,
    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 amendment
    protection?

  • Judge BORK

    At 01:56:19
    4 seconds

    May I have the page, please, Senator? I just got the
    speech in front of me.

  • Senator LEAHY

    At 01:56:23
    7 seconds

    It's on pages 8 to 9.

  • Judge BORK

    At 01:56:30
    1 minute

    Well, the transmission of news and information relevant
    to the political process includes a great deal of speech that is
    not political obviously—and 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 expression
    that do not directly feed the democratic process.
    That's right; on that rationale they don't. And I think I could
    still—if 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 reminded
    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 political—
    criticism 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 amendment—I 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

    At 01:58:08
    9 seconds

    Are you saying that today it does not have to directly
    feed the democratic process to be immune from regulation?

  • Judge BORK

    At 01:58:17
    31 seconds

    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 amendment
    protection?
    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

    At 01:58:48
    14 seconds

    Let's assume that the allegation of obscenity is
    not made. Then is the relationship to the political process irrelevant
    to the question of whether government could ban the publication?

  • Judge BORK

    At 01:59:02
    7 seconds

    Under current law it is and it is law I accept.

  • Senator LEAHY

    At 01:59:09
    9 seconds

    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

    At 01:59:18
    11 seconds

    NO. Under current law, it does not. I think any form
    of expression now—if it's not obscene—I think the Supreme Court
    protects.

  • Senator LEAHY

    At 01:59:29
    1 second

    What about a painting or a photograph?

  • Judge BORK

    At 01:59:30
    2 seconds

    I think so.

  • Senator LEAHY

    At 01:59:32
    2 seconds

    What about an article in a scientific journal?

  • Judge BORK

    At 01:59:34
    2 seconds

    Oh, clearly.

  • Senator LEAHY

    At 01:59:36
    8 seconds

    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

    At 01:59:44
    6 seconds

    That is the law and it is law I accept.

  • Senator LEAHY

    At 01:59:50
    3 seconds

    DO you think it should make any difference?

  • Judge BORK

    At 01:59:53
    1 minute

    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 mentioned
    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-expression
    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 process.

  • Senator LEAHY

    At 02:01:06
    6 seconds

    Should that kind of a question of burden—if
    we're really dealing with a constitutional issue—should that be
    that overriding?

  • Judge BORK

    At 02:01:12
    59 seconds

    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.

  • Senator LEAHY

    At 02:02:11
    9 seconds

    If the Government were to try to punish somebody
    speaking, if the speech is not obscene, does the first amendment
    protection depend upon whether the speech is related to political
    matters?

  • Judge BORK

    At 02:02:20
    6 seconds

    No. I think that is thoroughly settled. We are talking
    about a thoroughly settled body of case law.

  • Senator LEAHY

    At 02:02:26
    43 seconds

    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

    At 02:03:09
    1 second

    I am willing to assume that, Senator.

  • Senator LEAHY

    At 02:03:10
    23 seconds

    I have not read either one of them, but I will
    assume that, too. Does it make any difference in first amendment
    protection—I mean the fact that this one is obviously political—the
    excerpts I have read are very political—and this one of Mr.
    Cosby's, I assume, is not—that does not make any difference, does
    it?

  • Judge BORK

    At 02:03:33
    16 seconds

    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 connected
    to politics. The settled law is the Government has to prove it is
    obscene.

  • Senator LEAHY

    At 02:03:49
    12 seconds

    SO if we were dealing with—at least by the title
    of it—something, 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

    At 02:04:01
    11 seconds

    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

    At 02:04:12
    43 seconds

    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 used—being 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

    At 02:04:55
    13 seconds

    May I know what that is, Senator?

  • Senator LEAHY

    At 02:05:08
    1 minute

    May 28th, 1987—1 did not realize I had it here in
    my book—it was a Bill Moyers interview. In fact, I asked them for
    the transcript. Let me read down the part—I would be happy to
    give it to you—but 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,
    Sure, but in addition to that I am sure they recognized that other kinds of
    speech—speech about moral issues, speech about moral values, religion and so
    forth—all 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

    At 02:06:17
    6 seconds

    NO. When you get to art you may be into the area
    of pornography and obscenity.

  • Senator LEAHY

    At 02:06:23
    1 second

    IS that what you meant?

  • Judge BORK

    At 02:06:24
    1 second

    I think so, yes.

  • Senator LEAHY

    At 02:06:25
    3 seconds

    That is the only thing?

  • Judge BORK

    At 02:06:28
    45 seconds

    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

    At 02:07:13
    16 seconds

    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 article—was 2 years after the Brandenburg
    case. And that is why many of us felt it was well settled then.

  • Judge BORK

    At 02:07:29
    1 minute

    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 not—it 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 additional
    safeguard was added by the Supreme Court—that is, the necessity
    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

    At 02:08:38
    25 seconds

    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

    At 02:09:03
    3 seconds

    Where was this? Oh, this is Moyers?

  • Senator LEAHY

    At 02:09:06
    12 seconds

    Well, this, I believe, is your Worldnet interview
    that has been referred to earlier here today.

  • Judge BORK

    At 02:09:18
    5 seconds

    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

    At 02:09:23
    1 second

    Page 26.

  • Judge BORK

    At 02:09:24
    1 minute

    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 is—wait 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 approaching
    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

    At 02:10:47
    23 seconds

    Judge, that was not the question. The question
    was—it was not on pornography. It was on, can one really separate
    those forms of self-expression that feed into what you call the discourse
    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 wavering
    line.

  • Judge BORK

    At 02:11:10
    11 seconds

    Well, but I then gave an illustration, and my illustration
    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

    At 02:11:21
    4 seconds

    Well, your view of June 10th is your view of September
    17th?

  • Judge BORK

    At 02:11:25
    1 second

    Yes.

  • Senator LEAHY

    At 02:11:26
    2 seconds

    Okay.

  • Judge BORK

    At 02:11:28
    17 seconds

    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

    At 02:11:45
    21 seconds

    Let me ask you about another free speech concept.
    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

    At 02:12:06
    2 seconds

    Where is this, Senator?

  • Senator LEAHY

    At 02:12:08
    14 seconds

    Well, in your 1979 University of Michigan speech
    on page 15.

  • Judge BORK

    At 02:12:22
    1 minute

    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:
    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 children
    and the like may as surely be felt as harm as the possibility of physical violence.
    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

    At 02:13:23
    3 seconds

    Pornography or obscenity as we use it in the
    legal term?

  • Judge BORK

    At 02:13:26
    1 second

    Yes.

  • Senator LEAHY

    At 02:13:27
    1 second

    Both are the same, or are you using the terms
    interchangeably?

  • Judge BORK

    At 02:13:28
    5 seconds

    Well, I have been using them interchangeably.
    Probably I should not. But obscenity. All right.

  • Senator LEAHY

    At 02:13:33
    3 seconds

    I understand my time is up. I also understand we
    have a vote on.

  • The CHAIRMAN

    At 02:13:36
    8 seconds

    We have 7 minutes left in the vote. When we
    come back we will start with

  • Senator HUMPHREY

    At 02:13:44
    10 seconds

    Mr. Chairman, I wonder if by prior agreement
    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

    At 02:13:54
    2 seconds

    I was, but if it is 2 minutes, fire away.

  • Senator HUMPHREY

    At 02:13:56
    20 seconds

    It is timely. I thank the Senator from Pennsylvania
    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 questions.
    How many years did you serve in the Marine Corps, Judge?

  • Judge BORK

    At 02:14:16
    2 seconds

    I guess a total of three and a half or four, something
    like that.

  • Senator HUMPHREY

    At 02:14:18
    4 seconds

    All right. Let's round it off to four. How
    many years did you teach at Yale in total?

  • Judge BORK

    At 02:14:22
    2 seconds

    Fifteen years.

  • Senator HUMPHREY

    At 02:14:24
    3 seconds

    And how many years did you serve as a Solicitor
    General?

  • Judge BORK

    At 02:14:27
    3 seconds

    A little over three and a half, almost four.

  • Senator HUMPHREY

    At 02:14:30
    2 seconds

    YOU have been 5 years, five and a half on
    the Circuit Court?

  • Judge BORK

    At 02:14:32
    2 seconds

    Five and a half on the Circuit Court.

  • Senator HUMPHREY

    At 02:14:34
    1 minute

    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
    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

    At 02:15:36
    2 seconds

    Mr. Chairman?

  • The CHAIRMAN

    At 02:15:38

    Yes.

  • Senator LEAHY

    At 02:15:38
    48 seconds

    Judge Bork, I just want to ask you, according to
    the report you gave to us, you spoke of your—and I realize that you
    have sacrificed to be a Solicitor General just as Members sacrifice
    to be here—but if I am correct in reading your report to this committee,
    and something that perhaps the Senator from New Hampshire
    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, assuming
    $225 an hour and leaving Yale about mid-year, around
    Are those figures at least in the ball park?

  • Judge BORK

    At 02:16:26
    3 seconds

    They are in the ball park. Those are the only years
    I ever made any money in consulting.

  • Senator LEAHY

    At 02:16:29
    2 seconds

    Yes, but I just do not

  • Judge BORK

    At 02:16:31
    3 seconds

    And there was a reason why I did it and I do not
    want to go into it here.

  • Senator LEAHY

    At 02:16:34
    23 seconds

    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 totally
    proper and nobody is suggesting otherwise.

  • Judge BORK

    At 02:16:57
    1 second

    All right. Those were the only years in which I did.

  • Senator LEAHY

    At 02:16:58
    1 second

    Thank you.

  • Senator HUMPHREY

    At 02:16:59
    13 seconds

    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

    At 02:17:12
    2 seconds

    Yes.

  • The CHAIRMAN

    At 02:17:14
    5 minutes

    I think it is appropriate we stop and take a vote.
    [Recess.]
    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

    At 02:22:52
    1 second

    All right. Thank you, Mr. Chairman.

  • The CHAIRMAN

    At 02:22:53
    7 seconds

    Okay? Sorry we are going so late.
    Senator Specter?

  • Senator SPECTER

    At 02:23:00
    2 minutes

    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.
    But I would like to return now to the question of first amendment
    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 test—departs 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 articulated
    years ago, and what the clear and present danger test
    stands for and what Brandenburg stands for, isn't there?

  • Judge BORK

    At 02:25:17
    1 minute

    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 previously
    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 too—went 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

    At 02:26:24
    18 seconds

    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 disagreement
    with the Holmes clear and present danger test and with
    Brandenburg.

  • Judge BORK

    At 02:26:42
    39 seconds

    Well, I am not saying that I think—if 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.

  • Senator SPECTER

    At 02:27:21
    11 seconds

    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

    At 02:27:32
    17 seconds

    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 something
    different altogether.

  • Senator SPECTER

    At 02:27:49
    3 seconds

    Well, that is when you were arguing Parker v.
    Levy.

  • Judge BORK

    At 02:27:52
    18 seconds

    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

    At 02:28:10
    45 seconds

    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

    At 02:28:55
    7 seconds

    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

    At 02:29:02
    1 second

    NO, there is a text.

  • Judge BORK

    At 02:29:03
    2 seconds

    IS there? Might be a transcript.

  • Senator SPECTER

    At 02:29:05
    27 seconds

    Well, I don't know about a transcript. You provided
    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

    At 02:29:32
    7 seconds

    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

    At 02:29:39
    2 seconds

    YOU are welcome to it.

  • Judge BORK

    At 02:29:41
    1 second

    All right. Thank you.

  • Senator SPECTER

    At 02:29:42
    5 seconds

    Let me move on for a moment, and we can
    come back to it, Judge Bork.

  • Judge BORK

    At 02:29:47
    32 seconds

    Well, let me just say this, Senator. If disagreement
    on theoretical basis with a case you are willing to accept as an established
    precedent is somehow a problem, then I think every candidate
    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 nature—I don't think there are any two judges or
    lawyers who would agree on all these matters.

  • Senator SPECTER

    At 02:30:19
    59 seconds

    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
    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, secondly,
    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, ostensibly
    as an original interpretationist, of the importance of originalists
    not allowing the mistakes of the past to stand.

  • Judge BORK

    At 02:31:18
    43 seconds

    I think that I—I, 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 them—to 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

    At 02:32:01
    9 seconds

    But you have made some very strong statements
    about changing precedents where they are at variance with
    original intent.

  • Judge BORK

    At 02:32:10
    7 seconds

    Well, that certainly is one factor to be considered,
    no doubt about it.

  • Senator SPECTER

    At 02:32:17
    22 seconds

    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. Assuming,
    and I accept your statement that you agree, or were willing
    to apply Brandenburg and Hess v. Indiana, but the next
    case

  • Judge BORK

    At 02:32:39
    4 seconds

    Well, I didn't speak to Hess v. Indiana, Senator.

  • Senator SPECTER

    At 02:32:43
    1 second

    Okay. How about Hess v Indiana?

  • Judge BORK

    At 02:32:44
    14 seconds

    All right. No, I am not so wild about Hess v Indiana.
    That is a case of obscenity in the public streets, and sometimes
    the Supreme Court allows people to stop obscenities, sometimes
    it doesn't.

  • Senator SPECTER

    At 02:32:58
    4 seconds

    Well, the Supreme Court decided Hess on the
    Brandenburg doctrine flat out.

  • Judge BORK

    At 02:33:02
    16 seconds

    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

    At 02:33:18
    9 seconds

    Well, the Supreme Court said Brandenburg
    governed Hess.
    Well, I have got a copy that I can make available to you.

  • Judge BORK

    At 02:33:27
    2 seconds

    All right.

  • Senator SPECTER

    At 02:33:29
    3 minutes

    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 freedom
    of speech, and this is the doctrine which you have character
    ized as being "internally inconsistent" and being "terrifying frivolity."
    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 conduct,
    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 competition
    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 discourse
    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 proletarian
    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 society,
    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 amendment.
    And freedom of speech is really the core value, and is hardly
    frivolous.

  • Judge BORK

    At 02:37:02
    1 minute

    Senator, let me address Holmes' rationale—Holmes'
    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 ideas—to advocate violence by which a minority
    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.
    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

    At 02:38:34
    15 seconds

    Well, I disagree categorically—if 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

    At 02:38:49
    1 second

    Oh, I would let him argue it.

  • Senator SPECTER

    At 02:38:50
    2 seconds

    YOU would let him argue the proletarian dictatorship?

  • Judge BORK

    At 02:38:52
    1 second

    Oh, sure. I would let him argue it.

  • Senator SPECTER

    At 02:38:53
    14 seconds

    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

    At 02:39:07
    1 second

    NO. The

  • Senator SPECTER

    At 02:39:08
    3 seconds

    AS long as there is no violence that is imminent.

  • Judge BORK

    At 02:39:11
    2 minutes

    Well, one—Sanford'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 conspiratorial
    and advocacy taking place in organizations that organize
    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 marketplace
    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 Act—the 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 abandoned
    my original critique of those theories. I haven't even thought
    about them again, much less abandoned them.

  • Senator SPECTER

    At 02:41:21
    11 seconds

    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

    At 02:41:32
    3 seconds

    Well, it is. May I see that? Do you have the Dennis
    case there?

  • Senator SPECTER

    At 02:41:35
    38 seconds

    Well, this is what you said, analyzing the doctrine
    at the University of Michigan, at page 20 going onto 21:
    "The Holmes-Brandeis position held that virtually the only harm
    caused by speech that society can protect itself against is the prospect
    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 Brandenburg
    does pick up the Holmes-Brandeis doctrine of clear and
    present danger.

  • Judge BORK

    At 02:42:13
    26 seconds

    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
    said—they picked up Judge Learned Hand's definition of clear and
    present danger.

  • Senator SPECTER

    At 02:42:39
    15 seconds

    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

    At 02:42:54
    1 second

    Um-hum.

  • Senator SPECTER

    At 02:42:55
    10 seconds

    And it is running through the Frankfurter concurrence
    and it runs through the Jackson concurrence, and it is
    really the dominant theme of the case.

  • Judge BORK

    At 02:43:05
    5 seconds

    Well, the plurality opinion says—and I can't find it
    here because this is not my

  • Senator SPECTER

    At 02:43:10
    2 seconds

    It picks up Judge Learned Hand's definition

  • Judge BORK

    At 02:43:12
    4 seconds

    Yes. The Florida opinion says that you must look at
    the gravity of the danger

  • Senator SPECTER

    At 02:43:16
    1 second

    Play it against the evils.

  • Judge BORK

    At 02:43:17
    42 seconds

    —Discounted by the probability of its occurrence,
    and that is not the Brandenburg decision. Because under that version
    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 imminent
    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

    At 02:43:59
    44 seconds

    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

    At 02:44:43
    2 seconds

    Senator, may I interject there?

  • Senator SPECTER

    At 02:44:45
    1 second

    Sure.

  • Judge BORK

    At 02:44:46
    26 seconds

    I think our discussion of Brandenburg and clear and
    present danger demonstrates that I have not shifted from my writings.
    I have said that, as a judge, I accept those cases as precedent
    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

    At 02:45:12
    8 seconds

    Well, when the next case arises and it's distinguishable
    from Brandenburg, where will you be?

  • Judge BORK

    At 02:45:20
    2 seconds

    It depends, Senator, entirely on what the next case
    is and what it shows.

  • Senator SPECTER

    At 02:45:22
    13 seconds

    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

    At 02:45:35
    1 second

    NO, that's right.

  • Senator SPECTER

    At 02:45:36
    24 seconds

    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

    At 02:46:00
    5 seconds

    Well, I'll apply it as honestly as I can. That's all I
    can say to you.

  • Senator SPECTER

    At 02:46:05
    1 minute

    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, 1987—it's the Worldnet comment,
    and this is at page 12, where you talk about the equal protection
    clause. You say, "I do think the equal protection clause probably
    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 justify
    the Yick Wo case in 1886 involving the Chinaman who had applied
    for a license to have a laundry and got turned down in San
    Francisco? Can you imagine not having Chinese laundries

  • Judge BORK

    At 02:47:20
    3 seconds

    Yeah. That was a race

  • Senator SPECTER

    At 02:47:23
    18 seconds

    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 ethnics?

  • Judge BORK

    At 02:47:41
    6 seconds

    Well, I take it that Chinese people are a racial classification.

  • Senator SPECTER

    At 02:47:47
    8 seconds

    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

    At 02:47:55
    10 seconds

    NO, it didn't. It certainly didn't. But the equal protection
    clause clearly covers whites, and I think the framers

  • Senator SPECTER

    At 02:48:05
    3 seconds

    Does it clearly cover whites under original
    intent?

  • Judge BORK

    At 02:48:08
    1 second

    Yeah, I think it does, Senator.

  • Senator SPECTER

    At 02:48:09
    2 seconds

    Where does that come from?

  • Judge BORK

    At 02:48:11
    3 seconds

    From the statements of the people who were involved
    in drafting it and ratifying it.

  • Senator SPECTER

    At 02:48:14
    8 seconds

    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

    At 02:48:22
    3 seconds

    Yes.
    But let me go on with that, Senator, because

  • Senator SPECTER

    At 02:48:25
    1 second

    Where?

  • Judge BORK

    At 02:48:26
    1 minute

    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 various
    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 economic
    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 doctrine
    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

    At 02:50:15
    42 seconds

    But, Judge Bork, if you accept that, you're totally
    away from original intent, which was for blacks, as you wrote
    it, and for blacks as a racial issue. It doesn't talk about—that
    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

    At 02:50:57
    19 seconds

    NO. I think the equal protection clause is the primary,
    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 precedent
    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

    At 02:51:16
    37 seconds

    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
    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

    At 02:51:53
    35 seconds

    Well, I have also said, Senator, that anybody who
    tries to follow original intent must also have a respect for precedent,
    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 expectations
    have grown up around that, so many segments of our population
    have internalized that kind of protection, so many institutions
    are built on it, that it's an interpretation that should not be overturned.

  • Senator SPECTER

    At 02:52:28
    7 seconds

    Are you saying, then, that you will apply equal
    protection to women, just as the Court currently does?

  • Judge BORK

    At 02:52:35
    13 seconds

    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

    At 02:52:48
    5 seconds

    HOW about the strict scrutiny test, classification
    necessary to protect a compelling State interest?

  • Judge BORK

    At 02:52:53
    6 seconds

    Well, that's what I was objecting to, Senator.
    There are two methodologies

  • Senator SPECTER

    At 02:52:59
    12 seconds

    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

    At 02:53:11
    1 minute

    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 cases—I cited critically in the Indiana
    article. They upheld the statute that said women couldn't be bartenders
    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 scrutiny
    does it get. It is often said that race distinctions get strict scrutiny
    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 rationality
    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.

  • Senator SPECTER

    At 02:55:04
    1 minute

    My time is up. Let me just make a final observation.
    What troubles me as I hear your testimony, after having studied
    your writings and your opinions, is the very significant and pronounced
    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 articulate
    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 fundamentally
    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

    At 02:56:22
    1 minute

    In the first place, Senator, the fact that as a teenager
    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 constitutionality
    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 obligation
    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

    At 02:57:45
    13 seconds

    Judge, how can you say that you're standing by
    original intent when you say that you're prepared to accept the Supreme
    Court decisions on equal protection which have deviated totally
    from original intent?

  • Judge BORK

    At 02:57:58
    10 seconds

    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

    At 02:58:08
    22 seconds

    Wait a minute. You have written flat out—and
    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

    At 02:58:30
    35 seconds

    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
    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 that—somebody may go and examine
    the history of the 14th amendment and say that doctrine
    really isn't supported by the original intent. But if it's established

  • Senator SPECTER

    At 02:59:05
    4 seconds

    It's too late to tear up the doctrine of privacy?

  • Judge BORK

    At 02:59:09
    5 seconds

    We will face that when we come to it, Senator. I
    have told you how I would face it.

  • Senator SPECTER

    At 02:59:14
    3 seconds

    We're facing all these other matters this afternoon.

  • Judge BORK

    At 02:59:17
    27 seconds

    NO, but some things are absolutely settled in the
    law. I have told you what they are. I have told you that the incorporation
    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

    At 02:59:44
    2 seconds

    Thank you very much.

  • The CHAIRMAN

    At 02:59:46
    1 second

    The Senator from Illinois.

  • Senator SIMON

    At 02:59:47
    9 seconds

    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

    At 02:59:56
    38 seconds

    Mr. Chairman, I have just been contacted by
    former Dean Paul Marcus of the University of Arizona. He has informed
    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 position
    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

    At 03:00:34
    19 seconds

    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

    At 03:00:53
    2 seconds

    I thank the Senator from Illinois.

  • The CHAIRMAN

    At 03:00:55
    2 seconds

    The Senator from Illinois.

  • Senator SIMON

    At 03:00:57
    53 seconds

    Thank you, Mr. Chairman.
    Judge Bork, I was a little startled to hear your response to Senator
    Leahy on the pro bono work. One of the things that is important
    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 fortunate
    in your 60 years of work, helping or volunteering to work
    with the retarded or whatever it may be?

  • Judge BORK

    At 03:01:50
    20 seconds

    NO, Senator, I can't claim a record of that sort.
    Now, if you ask me do I know anything about such people, obviously
    I do, through a variety of ways—not the retarded in particular,
    but obviously I do through a variety of life experiences. But I
    have not done what you suggest.

  • Senator SIMON

    At 03:02:10
    2 minutes

    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 BORK.
    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 automatically
    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 oranges
    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 suppose
    you are taking one right away from the slave owner, the disparity
    is so great that it is important that that liberty be granted.

  • Judge BORK

    At 03:04:12
    3 seconds

    Oh, it is. I entirely agree with you.

  • Senator SIMON

    At 03:04:15
    7 seconds

    SO when you say "I think it's a matter of plain
    arithmetic "

  • Judge BORK

    At 03:04:22
    1 minute

    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 amendment
    because we thought it was important to give slaves rights.
    We have the 14th amendment because we thought it was important
    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 underclass
    that needed it.
    I have no objection to that. I just say that one must recognize
    that when you—when 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 Constitution
    itself redistributes rights and it's intended to, and it should.
    The only thing I have ever objected to was the court doing it without
    constitutional authority.

  • Senator SIMON

    At 03:05:41
    27 seconds

    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

    At 03:06:08
    2 seconds

    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—
    well, it does for one group, but it diminishes it for another group.
    That's all I was saying.

  • Senator SIMON

    At 03:06:10
    2 seconds

    I guess my concern is, as I hear it, you seem to
    almost equate the two.

  • Judge BORK

    At 03:06:12
    2 seconds

    No.

  • Senator SIMON

    At 03:06:14
    1 second

    All right.

  • Judge BORK

    At 03:06:15
    1 minute

    Let me back up.
    It may be—one 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 individual
    or a minority that "you may not be regulated in this
    way", then the court has redistributed the liberties without authority
    from the Constitution. It is wrong to say they have just increased
    liberty. They may or they may not. They've certainly redistributed
    liberty.
    My only point was that a court has no authority to do that without
    constitutional mandate.

  • Senator SIMON

    At 03:07:16
    13 seconds

    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

    At 03:07:29
    1 minute

    I think, Senator, that is not correct.
    For example, to take an example that I think most people would
    recognize—and 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 community
    decides that it wants to ban certain forms of obscenity, because
    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 Represent.
    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

    At 03:08:45
    36 seconds

    Then we get back to the exchange you had with
    Senator Specter here, where if I follow you correctly, and please
    correct me on this—you 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

    At 03:09:21
    1 minute

    Yes, I am. Under the equal protection clause,
    since—Once 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 currently
    gets through its multi-tier analysis, then as various challenges
    come up under the equal protection clause, the question will be
    whether this is a reasonable distinction or whether it's an outmoded
    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 Constitution
    says any person, and if you look at—that any person is
    protected under the equal protection clause—if you look at the language,
    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 unreasonable.
    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 unreasonable.
    That's the way constitutional doctrine evolves.

  • Senator SIMON

    At 03:10:52
    29 seconds

    Let me again read—and 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 to—but let me just read a few sentences here.
    "Compare the facts in Griswold with a hypothetical suit by an
    electric utility company "

  • Judge BORK

    At 03:11:21
    2 seconds

    Could I have the page, please, Senator, so I can
    follow you?

  • Senator SIMON

    At 03:11:23
    5 seconds

    It is pages 9 and 10.

  • Judge BORK

    At 03:11:28
    4 seconds

    All right. I'm sorry to stop you.

  • Senator SIMON

    At 03:11:32
    1 minute

    "Compare the facts in Griswold with a hypothetical
    suit by—" this is the case where the law outlaws the use of contraceptives
    "—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." 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 contraceptives
    and the majority in the court rules that that is unconstitutional,
    that that is really identical with an electric utility company
    violating a smoke pollution ordinance?

  • Judge BORK

    At 03:12:33
    1 minute

    Let's be—I must be very clear about what that
    means, because it is explained in the pages that follow. We are now
    talking about a case—Let 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-contraceptive
    ordinance, and as a citizen I would oppose the anti-contraceptive
    statute and I would vote for the smoke pollution statute.
    I am talking here about two cases in which, if there is no constitutional
    objection to either statute, then a judge has no way of imposing
    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 consumer,
    "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
    people who made the law—in 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

    At 03:14:12
    1 minute

    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

    At 03:15:25
    59 seconds

    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 I—I approve of most Supreme
    Court opinions. Some of them expand liberty.

  • Senator SIMON

    At 03:16:24
    40 seconds

    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

    At 03:17:04
    44 seconds

    Well, Senator, we had a discussion this morning—
    not you and I—in which I pointed to my record as Solicitor General
    and my record on the court of appeals, which has been—as 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

    At 03:17:48
    6 seconds

    Thank you, Judge.
    Thank you, Mr. Chairman.

  • The CHAIRMAN

    At 03:17:54
    3 seconds

    The Senator from South Carolina.

  • Senator THURMOND

    At 03:17:57
    22 seconds

    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.

  • Judge BORK

    At 03:18:19
    2 seconds

    Thank you, Senator.

  • The CHAIRMAN

    At 03:18:21
    1 minute

    The hearing is recessed until tomorrow morning
    at 10:00 o'clock.