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.
Thank you, Senator.
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A vacated court decision is just that—null, void, repealed, out the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
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
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
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
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.
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 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
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
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.
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
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
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?
Senator, I never have thought of a way to respond
to that, except to say "I do not understand why you say that."
Why not? Obviously
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.
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
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
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
He is a friend of mine, Senator.
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
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?
I asked him about the death penalty.
Yes. I just want to ask one other thing about
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.
Well, yes, we discussed it, I think.
Did you? Okay.
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
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
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
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?
That is correct. There was no allegation of racial
discrimination of any kind in that case.
Not one. And if there had been, what would
you have done?
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.
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
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.
NO; all right. I agree with that.
Without objection, the letter will be placed in
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
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 full statement has been put in the record.
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.
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.
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,
None; it applies to everybody.
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
I do not recall it particularly. Maybe there is a copy
around here someplace.
Yes. Can someone give the Judge a copy of
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
Yes. Is that your position?
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
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.
Yes. I saw that.
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
But you would not—in your rational or reasonable
test there, that would not fall into this area, that particular
NO, no; you would examine it.
YOU would examine it.
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.
Yes, I understand that. It does not make too
much difference from the standpoint of what we are talking about.
No, I know that, but from the standpoint of people
saying that I disfavor women, this is a case in which I was
They had a lot of evidence about differential drinking
patterns and resultant troubles, automobile accidents and so
forth, upon which they based that differential.
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?
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.
YOU don't have an opinion on that case?
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.
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?
Yes, that's correct.
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
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
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.
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.
Did your office defend it? You mean, when
you were Solicitor?
I don't know, sir.
Well, I think maybe we did. But anyway, no
I mean, is that relevant?
I am just curious.
Fine. I would be glad to find out.
NO. I can find out. There is a casebook around here.
I can, too, and I will be glad to find out and
let you know.
It is not really relevant. Well, I can't tell from that
whether I did or not. It just gives a date.
Yes. Well, I am sorry I don't know the
answer to that.
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.
NOW, let me ask you there, the reasonable
basis test doesn't fall in any of those three in your judgement?
NO. It is a different methodology.
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
Rational basis is what they used?
The dissent used the rational basis?
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.
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?
NO. NO, it is not the lowest level of scrutiny.
Okay. Now, is the reasonable standard test a
It is an entirely different methodology.
We are talking about heightened, intermediate,
rational, and now reasonable?
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
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
Isn't that the same as rational?
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.
Otherwise, you would apply the intermediate
or the strict interpretation, or test standard?
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.
But, in Frontiero, the facts are that Rehnquist
used the rational basis test.
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.
SO, you are not going to take to the Court, if
you are confirmed, this three tiers?
YOU are going to take one tier? Both as to
gender discrimination cases and race discrimination cases?
IS that correct?
That is correct.
SO you won't apply the strict interpretation
to the race discrimination test?
Well, in race
YOU are going to use reasonableness on everything
is what you are saying?
Yes. But in race, almost no distinction I can think
of is reasonable.
Well, I agree with you vis-a-vis you would
use the strict interpretation, or the strict standard.
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
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?
May I have the page number there, Senator?
The page of the case?
Just a minute, and I will get it for you. I will
get you the case, I think.
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.
It is on page 1457.
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
But on the other hand, it supported the Government's
position, that the Government wanted
This Congress' position. This Congress passed the
And who signed the statute? I assume it is
the law of the land, right?
It is the law of the land.
That is right.
I mean, it is not just the Congress.
That is right. The President signed the statute. But
I mean, this statute was framed
All right. Go ahead.
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
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
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
Oh, I see, I see.
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.
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
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
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.
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.
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,
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?
NO, Senator. Do you mean the discussion of the privacy
That is right; yes, sir.
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
That is why you answered every one of those
Yes, I did.
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
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.
YOU did not hear any arguments on the
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
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?
Oh, that is entirely true; that is entirely accurate,
I do not view a court's opinion as a place for a law review
YOU only do that when the cases are specified
in the material brought before you; is that what you are
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.
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
Well, it may be.
I read it, but I could not understand why it
Oh, that was entirely what the argument was about.
Thank you, Mr. Chairman. My time is about
up, and I am going to go vote.
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
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
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
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
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?
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.
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?
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.
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?
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.
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
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?
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.
IS the public following the Court's opinions
the rationale behind this?
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.
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?
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.
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?
Well, I think that is true.
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?
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
Well, I do not think that matters. I think you
can answer my question.
Oh, sure, sure.
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.
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
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.
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.
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.
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
Well, it would not be a passing grade, Senator; it
would not be.
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?
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.
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.
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
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.
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.
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.
If I could move on, Judge Bork, I would like
to talk about something we have heard a lot about.
Excuse me. Judge, where did that appear?
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—
YOU have a right to be upset if that is true, because
I recall specifically your being asked that.
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
YOU were, in fact, asked the question.
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.
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
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.
Well, it is entirely the same. In this
Entirely the same?
Well, as far as I can tell. I mean
Well, yes. I just want to emphasize it; I am
not disagreeing with you.
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
And that is what it does. It is one way of confining courts to the
proper area of their authority.
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?
No. I agree with the Court's line of rulings in recent
Okay. Senator Hatch?
Well, thank you, Senator, for yielding to me.
Mr. Chairman, I would like to put into the record at this time—
and would ask that a committee clerk be asked to hand these out
to the members of the 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
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 Senator has about 8 or 10 minutes left.
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.
May I say, Senator—because that is a good point—
there was no allegation of selective enforcement in Finzer v. Barry.
There was not?
NO. Nobody attacked the law on grounds of selective
enforcement. That would have produced a different case.
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
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.
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
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?
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.
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?
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.
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?
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.
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.
I agree there is a problem, Senator.
Thank you, we will now take a 5-minute 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.
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?
I don't know, Senator, I hadn't kept count that way.
It could well be correct.
I believe it is. At this point cert, has been granted,
but the case has not been decided by the Supreme Court.
That's correct, Senator. It has not been argued yet.
And if you were to serve on the Supreme Court,
you would not be able to sit on that case anyway.
Oh, no, of course not. Any matter I touched in any
way on the Court of Appeals I would recuse myself on the Supreme
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?
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,
YOU could, however, display a placard which was
supportive of that government.
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.
Under the statute, that is correct.
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.
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.
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?
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 .
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.
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.
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
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.
There may have been—I didn't know of any.
But you didn't.
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.
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,
NO, I suppose I could have asked for time to do it.
Are you proud of the fact that you didn't do any
pro bono work?
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.
Let me ask you about that. You are an expert in
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.
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?
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.
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?
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.
Your most significant clients are, what, General
Motors, General Atomic, Shell Oil? These are huge corporations.
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.
Let me ask you about the time you were at Yale.
That was while I was at Yale.
Let me go on that. How much pro bono work did
you do when you were at Yale?
I didn't do any pro bono work at Yale, Senator.
Again, why not?
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.
Prior to going to Yale, you had not had involvement
with constitutional law, but at Yale you did.
YOU were an expert, you taught constitutional
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?
NO, I was never approach for pro bono work.
YOU never volunteered your own expertise as a
constitutional authority for pro bono work?
Senator, I think he's answered that question.
Let me ask you this question. Was it because you
did not have time, the inclination, or were not asked?
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.
It's not a matter of time.
No, you can always stop doing one thing and do another
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.
Well, let me—I'm sorry, you weren't finished with
That's all right.
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
And yesterday, in answer to my question, you
did accept Brandenburg, but prior to that, in all your published
statements anyway, you had not.
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.
Brandenburg, of course, was decided in 1969.
Your Indiana Law Review article, which pretty well rejects it, was
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
May I have the page, please, Senator? I just got the
speech in front of me.
It's on pages 8 to 9.
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
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
Are you saying that today it does not have to directly
feed the democratic process to be immune from regulation?
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
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.
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?
Under current law it is and it is law I accept.
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?
NO. Under current law, it does not. I think any form
of expression now—if it's not obscene—I think the Supreme Court
What about a painting or a photograph?
I think so.
What about an article in a scientific journal?
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.
That is the law and it is law I accept.
DO you think it should make any difference?
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.
Should that kind of a question of burden—if
we're really dealing with a constitutional issue—should that be
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.
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
No. I think that is thoroughly settled. We are talking
about a thoroughly settled body of case law.
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.
I am willing to assume that, Senator.
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
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
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?
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.]
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.
May I know what that is, Senator?
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
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.
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.
NO. When you get to art you may be into the area
of pornography and obscenity.
IS that what you meant?
I think so, yes.
That is the only thing?
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.
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.
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.
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
Where was this? Oh, this is Moyers?
Well, this, I believe, is your Worldnet interview
that has been referred to earlier here today.
May I see it, please? Do we have it? Wait, somebody
gave it to me in the morning and I have now lost it.
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.
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
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.
Well, your view of June 10th is your view of September
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.
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.
Where is this, Senator?
Well, in your 1979 University of Michigan speech
on page 15.
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.
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.
Pornography or obscenity as we use it in the
Both are the same, or are you using the terms
Well, I have been using them interchangeably.
Probably I should not. But obscenity. All right.
I understand my time is up. I also understand we
have a vote on.
We have 7 minutes left in the vote. When we
come back we will start with
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
I was, but if it is 2 minutes, fire away.
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?
I guess a total of three and a half or four, something
All right. Let's round it off to four. How
many years did you teach at Yale in total?
And how many years did you serve as a Solicitor
A little over three and a half, almost four.
YOU have been 5 years, five and a half on
the Circuit Court?
Five and a half on the Circuit Court.
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.
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?
They are in the ball park. Those are the only years
I ever made any money in consulting.
Yes, but I just do not
And there was a reason why I did it and I do not
want to go into it here.
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.
All right. Those were the only years in which I did.
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?
I think it is appropriate we stop and take a vote.
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
All right. Thank you, Mr. Chairman.
Okay? Sorry we are going so late.
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.
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
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
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?
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
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
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.
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
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
Well, that is when you were arguing Parker v.
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.
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?
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.
NO, there is a text.
IS there? Might be a transcript.
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.
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
YOU are welcome to it.
All right. Thank you.
Let me move on for a moment, and we can
come back to it, Judge Bork.
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.
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.
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.
But you have made some very strong statements
about changing precedents where they are at variance with
Well, that certainly is one factor to be considered,
no doubt about it.
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
Well, I didn't speak to Hess v. Indiana, Senator.
Okay. How about Hess v Indiana?
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
Well, the Supreme Court decided Hess on the
Brandenburg doctrine flat out.
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.
Well, the Supreme Court said Brandenburg
Well, I have got a copy that I can make available to you.
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
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
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."
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.
Oh, I would let him argue it.
YOU would let him argue the proletarian dictatorship?
Oh, sure. I would let him argue it.
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?
AS long as there is no violence that is imminent.
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.
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.
Well, it is. May I see that? Do you have the Dennis
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
So you flatly say there, as a matter of analysis, that Brandenburg
does pick up the Holmes-Brandeis doctrine of clear and
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
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.
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.
Well, the plurality opinion says—and I can't find it
here because this is not my
It picks up Judge Learned Hand's definition
Yes. The Florida opinion says that you must look at
the gravity of the danger
Play it against the evils.
—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
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.
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
Senator, may I interject there?
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.
Well, when the next case arises and it's distinguishable
from Brandenburg, where will you be?
It depends, Senator, entirely on what the next case
is and what it shows.
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
NO, that's right.
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
Well, I'll apply it as honestly as I can. That's all I
can say to you.
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
Yeah. That was a race
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?
Well, I take it that Chinese people are a racial classification.
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.
NO, it didn't. It certainly didn't. But the equal protection
clause clearly covers whites, and I think the framers
Does it clearly cover whites under original
Yeah, I think it does, Senator.
Where does that come from?
From the statements of the people who were involved
in drafting it and ratifying it.
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?
But let me go on with that, Senator, because
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
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.
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
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.
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
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.
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.
Are you saying, then, that you will apply equal
protection to women, just as the Court currently does?
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
HOW about the strict scrutiny test, classification
necessary to protect a compelling State interest?
Well, that's what I was objecting to, Senator.
There are two methodologies
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?
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
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
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.
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.
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
I think that kind of evolution is very common in people, very
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.
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?
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
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?
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
It's too late to tear up the doctrine of privacy?
We will face that when we come to it, Senator. I
have told you how I would face it.
We're facing all these other matters this afternoon.
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.
Thank you very much.
The Senator from Illinois.
Thank you, Mr. Chairman. I thank my colleague,
Senator Heflin, for yielding to me, and I yield briefly to Senator
DeConcini for a statement.
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.
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.
I thank the Senator from Illinois.
The Senator from Illinois.
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?
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.
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?
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.
Oh, it is. I entirely agree with you.
SO when you say "I think it's a matter of plain
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
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
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?
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.
I guess my concern is, as I hear it, you seem to
almost equate the two.
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
My only point was that a court has no authority to do that without
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.
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.
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
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.
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 "
Could I have the page, please, Senator, so I can
It is pages 9 and 10.
All right. I'm sorry to stop you.
"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?
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.
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?
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.
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
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.
Thank you, Judge.
Thank you, Mr. Chairman.
The Senator from South Carolina.
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.
Thank you, Senator.
The hearing is recessed until tomorrow morning
at 10:00 o'clock.