Did Bork Say Too Much?

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  • Did Bork Say Too Much?Author(s): HENRY J. RESKESource: ABA Journal, Vol. 73, No. 14 (DECEMBER 1, 1987), pp. 74-76Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759649 .Accessed: 16/06/2014 12:34

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  • ^^^^^^^^^^^^^^^^^^^^ BY HENRY J. RESKE On a cold January morning in

    1939 Felix Frankfurter, a man with well-known and strong

    opinions, stood before the Senate Ju

    diciary Committee and set a prece dent for generations of Supreme Court nominees to follow.

    "While I believe that a nomi nee's record should be thoroughly scrutinized by this committee, I hope you will not think it presumptuous on my part to suggest that neither such examination nor the best inter ests of the Supreme Court will be helped by the personal participation of the nominee himself," he said. "I think it improper for a nominee no less than for a member of the Court to express his personal views on con troversial political issues affecting the Court.

    "I should think it not only bad taste," he added, "but inconsistent with the duties of the office for which I have been nominated for me to at tempt to supplement my past record by present declarations."

    Frankfurter was true to his word. In his testimony, which lasted less than 90 minutes, he refused to an swer questions on communism and Marxism but did deny being a Com munist.

    During the next 48 years the per sonal appearance of Supreme Court nominees before the Senate Judici ary Committee became the rule; the sessions grew longer, the questions tougher and politics were never far from the scene. But while the barrier against discussing "controversial po litical issues" crumbled from time to time, it did not fall.

    In 1956, William Brennan en dured tough and repeated questions from Sen. Joseph McCarthy, R-Wis., about his views on communism.

    While answering general questions and expressing his distaste for the philosophy, Brennan stood his ground and said he had an "obligation not to discuss any issues" that might come before the Court.

    Sandra Day O'Connor was given a hard time on the issue of abortion. She too gave general answers but said, "It is just that I feel that it is im proper for me to endorse or criticize that decision which may well come

    Did Bork Say

    Too Much? back before the Court."

    Anti-abortion activists strongly opposed O'Connor and called for her nomination to be withdrawn. They also lobbied senators and organized protests. At the same time the Na tional Organization For Women strongly supported O'Connor.

    OVERT POLITICS But the Supreme Court nomi

    nation of Robert Bork, another man with well-known and strong opin ions, has set what many fear will be a precedent for future Supreme Court nominations.

    Politics swirled around the nom inee from the start, with intense lob bying efforts mounted by those for and against Bork. Money was raised and spent, radio and television ads were aired and piles of briefing books were issued by everyone from the White House and Justice Department to interest groups on the left and right, all designed to show Bork either as a saint or the devil incarnate.

    Bork himself stunned everyone by taking a new tack during the hear ings. In his five days of testimony be fore the Senate Judiciary Committee beginning Sept. 15, Bork not only talked about the issues but he spoke of them in great detail and at length.

    "I welcome this opportunity to come before the committee and an swer whatever questions the mem

    bers might have," Bork said in opening his testimony. "I am quite willing to discuss with you my judi cial philosophy and the approach I take to deciding cases. I cannot, of course, commit myself as to how I might vote on any particular case and I know you would not wish me to do that."

    Bork, like Frankfurter, was true to his word, perhaps too true.

    He answered questions on a va

    riety of constitutional and social is

    sues. He spoke of his views on the right to privacy?the underpinning of many Supreme Court rulings in cluding those guaranteeing a right to birth control and abortion?First Amendment law, due process rights, antitrust law and the "incorporation doctrine" that brought the states un der the aegis of the Bill of Rights. To the surprise of many, he also spoke of cases he said involved settled con stitutional doctrine, cases he would not seek to overturn.

    Bruce Fein, a visiting Fellow for Constitutional Studies at the con servative Heritage Foundation, called Bork's performance "absolutely un precedented" and invited compari sons between Frankfurter and Bork. He said Frankfurter "had written publicly on everything the Court had done in its history and not in a lau datory fashion in any way." But Frankfurter did not enter into debate with members of the Senate for fear of commenting on issues that might come before him.

    Fein said Bork, who also has a public record of comment on Su preme Court decisions, was "too forthcoming. ... He clearly has fore shadowed his vote in a number of

    ways." "That's just wrong," he added.

    "Justice requires the appearance of justice. He committed himself in a number of areas and not just in a law review article."

    While headlines focused on

    charges that Bork had softened his positions in order to win confirma tion?undergoing a "confirmation conversion"?the larger issue for the future is what he did to those who will follow in his footsteps. Will the Bork hearings become the rule?

    Bork himself had no doubt about what the answer should be.

    In a statement read at the White House Oct. 9, when Bork faced al

    Henry J. Reske is the Supreme Court reporter for UPI.

    74 ABA JOURNAL / DECEMBER 1, 1987

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  • U

    Robert Bork

    in a recent interview. "I thought that it was a very high, intellectual pro ceeding and experience. I think most of my colleagues felt that way too."

    THE ABA VOTE Hatch did reserve some special

    ire for the ABA, whose report on Bork to the Senate committee infuriated Bork's supporters. When the report was released it was revealed that the vote to give Bork the ABA's rating of "well qualified" was a split decision. Ten of the ABA's 15-member Stand ing Committee on the Federal Judi ciary voted Bork "well qualified" while four voted "not qualified" and one "not opposed." The non-unani

    mous rating was the first for a Su preme Court nominee in 15 years.

    A Legal Times' story identified the four dissenters as Samuel Wil liams of Los Angeles; Joan Hall of Chicago; John Lane of Washington, D.C.; and Jerome Shestack of Phila delphia.

    Hatch noted that Bork unani mously received the highest ABA rat ing for the U.S. Court of Appeals for the District of Columbia but six years later faced a divided vote by the ABA.

    "Now tell me that's not pure and simple naked politics," he said.

    However, Harold R. Tyler Jr., chairman of the ABA Standing Com mittee on the Federal Judiciary, de fended the report during the hearings and said the dissenters acted in good faith and voted their consciences.

    Biden called the hearings a good thing. "The American public," he said, "had a greater lesson on the Constitution in its 200th anniversary than probably at any time in its his tory. I think the debate by everyone's admission was high-minded and was on the issues. The debate never got down to anything about personal is sues. It amazed me: I'd get on the train and people would talk to me about the 14th Amendment."

    But something went awry be tween the theory of a high-minded debate on judicial philosophy and the hearings that caused great conster nation in the legal world.

    "I'm aware of no hearings in modern times in which a nominee has opened himself up to as wide a range of questioning as Judge Bork. In that sense it is unprecedented," said A.E. Dick Howard, a University of Vir ginia law professor and former clerk

    most certain defeat in the Senate, he said the process of confirming jus tices has "been transformed in a way that should not, indeed must not, be

    permitted to occur ever again. "The tactics and techniques of

    national political campaigns have been unleashed on the process of confirming judges. That is not simply disturbing. It is dangerous."

    None of this just happened spon taneously. The groundwork for ex

    amining Bork on his judicial views was laid long ago. Presidents dating back to George Washington have chosen Court nominees on the basis of their political views and the Sen

    I ate has rejected them for the same reason. Interest groups, such as labor unions and civil rights groups in the failed Clement Haynsworth nomina tion in 1969 and anti-abortion groups in O'Connor's 1981 hearings, have also been active in the debate.

    BIDEN'S ROLE When Bork was nominated July

    1 to replace Justice Lewis Powell, Senate Judiciary Committee Chair man Joseph Biden, D-Del, quickly championed a call for a thorough ex amination of Bork's views.

    Despite initial balking by Bork supporters and conservatives, the area was quickly conceded. The

    White House spoke of Bork in politi cal terms, issuing a briefing book de

    signed to portray Bork as moderate, and the conservative members of the

    Judiciary Committee backed off. Sen. Strom Thurmond, R-S.C,

    the Committee's ranking Republican, told his colleagues that "a candi date's philosophy may properly be considered" as long as it's not the sole consideration.

    In an interview, Biden argued

    that the Bork hearings were not so different from others and said the wide-ranging questions and answers were "only a difference in degree, and the difference relates to Judge Bork's wide-ranging and very specifically defined and delineated views prior to

    coming to the committee." "We question every nominee and

    everything they've written or said or done on the bench," Biden said. "The reason these were wider ranging is

    Judge Bork had a wider ranging ar

    ray of comments, articles, statements and cases than I think anyone who has ever come before the Judiciary Committee, at least in modern times."

    Biden said the hearings were consistent with "what happens when a president picks someone who is de

    cidedly ideological for that expressed purpose." He said his speeches laying out his strategy were necessary be cause of the view that the Senate's

    only role "was to be a rubber stamp" for the president's choice, to check character, legal training and intelli gence.

    "The point that I had to make was that it's generally true, but not when the president attempts to fun damentally alter the makeup of the Court with someone with a funda

    mentally different view than the

    prevailing view of American juris prudence," Biden said.

    Sen. Orrin Hatch, R-Utah, who

    complained vehemently about what he called the "lies, distortions and

    propaganda" thrown against Bork by lobby groups, nonetheless had no

    problem with the line of questioning. "This is the first time in history

    that any Supreme Court nominee has

    subjected himself to almost a whole sale interrogation concerning a wide

    variety of aspects of the law," he said

    ABA JOURNAL / DECEMBER 1, 1987 75

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  • to Justice Hugo Black. "He allowed them to interrogate him on a wide range of issues, stopping just short of specific cases?but not much short."

    Harvard Law School Professor Laurence Tribe, who advised Biden and the committee, also questioned the propriety of Bork's testimony. Tribe said that Bork's statement that he felt bound to accept areas of set tled law in specific cases "raises pro found questions of judicial independence."

    "The very fact he made those commitments makes this a unique case and raises troubling issues about propriety. To promise how you would vote in a particular case, as Antonin Scalia said in his confirmation hear ings, and Sandra Day O'Connor said in hers, and many others repeated, is not appropriate," he said.

    STRATEGIC WARFARE But, just as the strategy to ex

    amine Bork's views was premedi tated, so were his lengthy and detailed answers.

    Bork had two decades of speeches and writings attacking Su preme Court rulings to explain, and his allies at the White House and the Senate were eager to help. The White House issued a briefing book to show Bork was in the mold of Justice Lewis Powell, who had a reputation and re cord of moderation.

    "We all know that since his nom ination, Judge Bork has come under attack for being some kind of right wing ideologue," President Reagan said in defense of his candidate. "We also know those charges are wrong."

    Senators tried to tone down Bork's image and suggested that his writings as a professor did not reflect what he would do as a judge, that the writings only reflected Bork as a pro vocative law professor.

    Bork himself commented that, "In a classroom nobody gets hurt. In a courtroom somebody always gets hurt and you're very careful, less speculative and less daring."

    He said a professor is "freer to take strong positions and take chances with ideas because it's an in tellectual game in part."

    "The fact that Judge Bork was willing to go so far about his philos ophy is no accident," Tribe said. "The reason he was willing to go so far is that the views expressed so strongly


    game began to change." However, the question remains,

    what's next? The answer may de pend not on the president, the Sen ate, or the interest groups, but the nominee.

    Interest groups are certain they did the right thing and that, given similar circumstances, they would do it again.

    "The American people didn't know a lot about Bork and we edu cated them," said Kate Michelman, executive director of the National Abortion Rights Action League. "That's the American process?edu cation and mobilization. I think it's a .

    very proper role to play." She said, "If the White House

    sends up another nomi...