Of endorsements, beginning with gerald ford, followed by remarks of senator several senators. Then it ends with the Opening Statement and a portion of the Committee Hearing and vote. Joe biden i welcome everyone here this morning, judge bork, his distinguished panel of introducers, my colleagues, and the public. And i would like to take just a moment at the outset to explain how we are going to proceed today and from here on i hope. , it is the ordinary practice of the committee in a hearing like this, judge, to have Opening Statements from all of my colleagues, and then to invite the presenters of the nominee to speak, and then ask the nominee for his or her statement. But we are going to change the beginning just a little bit today to accommodate some very busy and, quite frankly, very important people. Today, you have a distinguished panel of introducers that are here, and what i would like to suggest that we do, and i have checked this with my colleagues. I believe they are all in agreement. What we will do today even , though every senator will have up to 10 minutes to make an Opening Statement, i will, for the time being, forego my Opening Statement. And i understand the distinguished Ranking Member, senator thurmond, will also. Then we will yield to president ford, and it is a great honor to have you here, mr. President , yield to president ford and distinguished members of the congress who will be introducing you. And then we will come back to Opening Statements, either senator thurmond or senator kennedy, whomever wishes to proceed next,and finish our Opening Statements. I suspect that after the introducers and the Opening Statements that will, quite frankly, take the better part of the morning. So i beg your indulgence, judge, to sit through all the flattering comments that you will hear and all the questions that you may hear raised. And then we will reconvene approximately an hour after we finish. My hope is we will finish by 1 00 or earlier, and we will reconvene at 2 00. And at that time, i will make a brief Opening Statement. I will invite you to make your statement, and at that time hopefully introduce your very lovely family that i had an opportunity to meet just a few moments ago. If that is agreeable with my colleagues, without any further waste of time, i welcome you, mr. President. It truly is an honor to have you here. As you know, on both sides of the aislem you have had nothing the aisle, you have had nothing but friends. We miss you here in washington. Quite frankly, most of us envy you, not only that you have been president. [laughter] joe biden but that senator dole and i do not care much about that. But not only that you have been president , but that you seem to be flourishing in the status of a former president as well. Mr. President , please, your Opening Statement. Gerald ford mr. Chairman, distinguished members of the Senate Committee on the judiciary, first, mr. Chairman, i thank you for your very kind and generous introduction. It is a very high honor and a very rare privilege for me to return to capitol hill and to appear before this distinguished committee of the United States senate. Although i never had the privilege of serving as a member of the United States senate, i did have the great honor of 25. 5 years as a member of the house of representatives. During my years in the house, my nine months as president of the senate, and 2. 5 years as president of the United States, i had an abiding respect for the senate, especially its unique and special responsibilities under the constitution. In addition, in my 28. 5 years in the nations capital, i developed warm and treasured friendships with members of the senate on both sides of the aisle. I am pleased to see some of these cherished friends on the panel on this occasion. My appearance before the committee is for the purpose of introducing the honorable robert bork, judge of the u. S. Circuit court of appeals for the District Of Columbia, who has been nominated by president reagan for service as an associate justice of the Supreme Court of the United States. Under the constitution, article ii, section 2, the president has the authority and the responsibility of nominating an individual for the position of justice on the United States Supreme Court. The senate, under article ii, section 2, has the duty of advise and consent for president ial nominees to the Supreme Court. During my service in the presidency, i had the opportunity and the honor to propose to the senate an individual for confirmation to serve on the nations highest judicial body. I consider the nomination of a Supreme Court justice one of the most important responsibilities of a president of the United States. It is vital that the nominee selected be of unquestioned character, broad training in the law, indepth experience in the legal profession, and have a capability to analyze the facts with objectivity and articulate ones decision on the basis of the law and the constitution. It was my honor and privilege as president to submit the name of judge John Paul Stevens to the senate for confirmation. The thenu. S. Attorney general, edward levi, was invaluable in the Selection Process to fill this vacancy. We extensively reviewed judge stevens background in private practice, as the u. S. District court judge, and as a judge of the seventh circuit of the court of appeals. Attorney general levi and i personally read a number of his decisions. On the basis of his superb qualifications, i submitted his name to the senate, and he was promptly and overwhelmingly confirmed. I am very proud of Justice Stevens superb record on the Supreme Court for the past 12 years. While i have not always agreed with Justice Stevens, such differences in no way whatsoever undercut my faith in his effective and dedicated service on the Supreme Court. Because i have such high regard for Justice Stevens, i am pleased to note that on july 17, 1987, while attending a meeting of lawyers and judges in omaha, nebraska, Justice Stevens stated that judge bork, and i quote, is a very wellqualified candidate and one who will be a very welcome addition to the court. I have known judge bork since the mid1960s when he was a distinguished faculty member of the Yale University law school, my alma mater. While teaching at the Yale Law School for 15 years, he held two endowed chairs in recognition of his achievements as a scholar. He is an honored graduate of the university of Chicago Law School and managing editor of the law review. Prior to law school, he served in the United States marines , and, while in law school, interrupted his Legal Education for a second marine corps tour. He had broad experience in private practice as a partner with kirkland and ellis, a nationallyknown prestigious law firm. My friendship with robert bork expanded during his service as solicitor general, 1973 to 1977, while i was the republican leader in the house of representatives, Vice President , and president. For the record, he was unanimously confirmed as solicitor general. Just months into the job as solicitor general, robert bork was faced with a crisis not of his own making. President nixon, during the watergate investigation, ordered the dismissal of special prosecutor archibald cox. Judge bork, when thrust into a very difficult situation, acted with integrity to preserve the continuity of both the Justice Department and the special prosecutors investigation. I think in retrospect that history has shown that his performance was in the nations interest. When i became president august 9, 1974, i requested that he stay on as solicitor general, and he distinguished himself as the principal Government Advocate before the Supreme Court during my administration. The Ford Administration and the nation benefited enormously from this outstanding service. I was especially pleased that president reagan nominated robert bork for judge of the United States Circuit Court of appeals for the districtof columbia, and that the United States Senate Confirmed him unanimously just five short years ago. In my judgment, in my opinion, judge borks record on the bench has been exemplary. There are four kinds of occupations that a lawyer can have, private practitioner, law professor, government lawyer, and judge. Robert bork has distinguished himself in not one, but in all four endeavors. A renowned federal Appeals Court judge, former solicitor general of the United States, professor of law at Yale University, and twice a partner in one of the nations leading law firms, judge robert bork is uniquely qualified to sit on the United States Supreme Court. It is, therefore, my distinct honor and great pleasure to introduce to this distinguished committee a man who, as chief Justice Burger noted, may well be the most qualified nominee to the Supreme Court in more than half a century. Mr. Chairman and members of this distinguished committee of the United States senate, i strongly urge affirmative Committee Consideration and favorable approval by the u. S. Senate. Thank you very much, mr. Chairman. Joe biden thank you very much, mr. President. Now, we will go to the senator minority leader, republican leader, senator bob dole. You are welcome i understand you have a very tight schedule, mr. President. Do not feel required to stay. I mean you are excused. Mr. Chairman, i wonder if the chairman would indulge me to ask the president a question, seeing that he is going to leave. It will only take 30 seconds. Mr. Chairman, i am delighted, and i would bepleased to stay and respond to questions if you or other members of the committee would like to pursue that. I have a schedule, but nothing today is more important than my presence before this committee on this vital matter. So i am delighted and honored if somebody on the committee would well, mr. President , maybe to accommodate your schedule, i do not have any questions, and i do not think anyone else does. Obviously, senator deconcini has one. Mr. Chairman, i am sorry to indulge thecommittee, and i know this is different than what you and i talked about the day before yesterday. I did not realize i had any questions, but i read your statement this morning very carefully, mr. President. I wanted to ask you if you have read any of the opinions of judge bork since he has sat on the Circuit Court in the district. Gerald ford i have read a limited number. I have read various analyses pro and con of those opinions. I have read those that have been submitted to me by the people that are favorable, and i have taken the time to read some of the analyses that are critical. And mr. President , have you had a chance to read any of his law review articles, in particular the indiana law review article of 1971, or any of his other law review articles that are of a controversial nature . Gerald ford i have not read individual law review articles. I have read synopses of some of those articles, comments pro and con, by individuals who were interested. Thank you, mr. President. Thank you, mr. Chairman. Joe biden thank you. I appreciate your indulgence. Mr. President , as i said, you are welcome to stay, but there is truly no need. I know you have a schedule, and i do not mean to imply in any way that this is not the single most important thing to you. I understand that. But i think judge bork is well represented. You are welcome to stay. If your schedule dictates that you go, please do. I thank you very, very much for being here. It has been an honor for the committee. It is not often we have a former president before this committee. It has been a great honor. Gerald ford thank you again. Unless there are any questions, i appreciate very much being excused. Joe biden we have no further questions. Thank you very much, mr. President. Now, we will proceed with the Senate Republican leader, senator dole, who has been a member of this committee for many years. And welcome back, bob. Please proceed. Mr. Chairman and members of the committee, i am certainly pleased to have this brief opportunity, and i will be brief. I know the committee has a lot of work to do. I want to thank my former house colleague and a friend of mine for over 25 years, president ford, for being here this morning. I think he does add a great deal to this hearing. He does have the respect of republicans and democrats and has always had it, as far as i can recall. So i am certainly pleased to see him again. And i agree with the comments made earlier by the chairman about former president s and future president s. Very pleased to be here for a couple of reasons. There is more than a little fortuity in the timing and location of these hearings because in two days we will be celebrating in philadelphia the bicentennial of our constitution. And that constitution established, of course, three branches of government, the executive, the legislative, and the judicial, each with a role to play in governing ournation. Our nation. And all throughout this past summer in this very room, members of congress explored the complex and dynamic relationship betweenthe executive and the legislative branches of our government. And in the process of doing this, they raised the level of public debate on that relationship. Now, the committee will explore a different aspect of our constitutional system the proper scope of the senates role in the selection of Supreme Court justices. In judge robert bork, the president has found a man of unquestionable ability and integrity. His professional background made him a leading and obvious candidate for the Supreme Court even before Justice Powell resigned. Those who have opposed his nomination and may oppose his nomination in the future, in my view, have conceded that much. And many have focused their attention on his ideology. And in doing so, they have found Different Reasons why they now must oppose, or why they might oppose in the future, judge bork. And i think this hearing is going to be of tremendous significance. Lets face it we are all , politicians, and we know that 1988 is next year. But i have got to believe that republicans and democrats alike, take this responsibility very seriously on this committee. There are going to be some tough questions. Judge bork knows that. Judge bork is prepared for that. And i believe, in the final analysis, that he is going to be the key factor in this whole confirmation process. Some of us have indicated our support, and some of us have indicated our opposition. But i have been pleased with what i see developing. I think we are going to have a very objective effort by this committee. And i would hope when this nomination comes to the senate floor, as i believe it will, that we can move with dispatch and keep it on the same high plane. I know that is going to be the effort of the distinguished chairman and the distinguished Ranking Member, senator thurmond, and others who will be involved in that debate. I would hope that as part of the leadership, i can be of assistance along with senator byrd. There are a number of issues that do not lend themselves to easy answers or instant analysis. They certainly do not lend themselves to slogans or statistics. I would ask the committee and the American People to take the time to understand judge borks approach to the constitution. And that approach is based upon judicial restraint, the principle that judges are supposed to interpret the law, not make it. Now, judge bork did not invent this concept. It has been around for a long time. One of the most eloquent advocates was Oliver Wendell holmes, and similarly, his views on many cases are not original. As i understand, and i have not read all the articles, but his writings on the right to privacy are difficult to distinguish from those of hugo black. There are many similarities, and i am certain the committee willgo into it casebycase, law review by law review, and they will make the final determination. Now, it has been some time since this nomination was made. And i would say at the outset some of us were critical of that. But i would guess in retrospect it may have taken that much time, with the august recess, to prepare for this very important hearing. Lets face it. There is tremendous interest in the country. Wherever you go, and some of us go a lot of places, this is generally question number one or number two in any town meeting in america. So the American People are tuned in. The American People are ready for a fair and impartial, tough hearing. I have got to say, judge bork, you are probably going to have one. And i know you are prepared for it. I want to join my colleagues here to indicate my appreciation for having an opportunity to help introduce judge bork this morning. Joe biden thank you very much, senator. Again, i know your duties exceed those of us on the committee here in your leadership position. You are welcome to stay, obviously, but we understand if you do not. Bob dole i want to stay for the other two statements. Joe biden my next door neighbor in this building is the senator from missouri, senator danforth. Senator danforth mr. Chairman, thank you very much, andmembers and members of the committee. Normally, president ial nominees ask senators from their home state to present them to Senate Committees. Judge bork resides in the District Of Columbia, so he has turned to the next available option and has asked a former student of his to be here today. His first year on the faculty of Yale Law School was my final year as a student there. He taught me all i ever knew about antitrust. For those who wonder about his compassion and humanity, i passed professor borks course. Mr. Chairman, i am genuinely honored to be here today. 25 years after that law school class, my memories are dim about the details of antitrust law, but i have a clear recollection of bob bork, the teacher. Even in his first class, he was a firstrate professor. He has since told me that he was panicked when he stood before that class. He certainly did not show it. By every indication, he loved teaching. His eyes sparkled, so did his sense of humor. He delighted in saying things to provoke responses from his students. Far from playing the selfimportant pedagogue, bob bork delighted in the giveandtake of the classroom , in the clash of ideas. He did not require us to receive his thoughts as revealed truth. He taught us to think for ourselves. He held strong views. Every good law professor does. But he used those views to evoke a response from his students. He encouraged argument. He respected dissent. This to him was the joy of classroom teaching. Judge bork has said that his own philosophy of the law has evolved over the 25 years since i knew him in class. He is the best one to explain just how that evolution occurred, and i am sure he will do just that, clearly and unequivocally. My point is simply this. Those who say that judge bork is an unyielding ideologue are not describing the man i know. In my experience, unyielding ideologues do not resemble judge bork. They do not encourage dissent. They do not have a sense of humor. And they do not evolve in their own thinking. Mr. Chairman, having made these comments about judge bork, the person, i do not believe that the senates decision will or should be made on the basis of personality. The issue before us is far more fundamental and far more important than that. In this confirmation, we in the senate will be expressing our views on the role and power of the United States Supreme Court. The straightforward issue is the readiness of the court to strike down the acts of the legislative branch of government, federal or state. The power of the court to nullify legislation is restrained only by the court itself. As Justice Hughes once said, the constitution is what the judges say it is. A court which is willing to read novel meanings into the constitution has the power to do so. Judge bork is an advocate of judicial restraint. His view, as i understand it, is this. If the Supreme Court strikes down a legislative act, its decision must be based on sound legal reasoning, not on the personal opinions of the court about the wisdom of the legislation dressed up in legal terminology. Judge borks judicial philosophy is open to fair debate by able people of good will. I happen to agree with judge borks view of judicial obviously this includes legal training, past experience, demonstrated social confidence and integrity. A record of legal scholarship, while historically not always a prerequisite, is also an important consideration when relevant. Finally, and very importantly, if the nominee has prior judicial experience what does , that record reveal both in terms of legal soundness and judicial temperament . But that is what the Senate Confirmation process is about. Reviewing these factors, hearing both sides on the merits of a particular nominee, and ultimately deciding in the best interests of our nation. Certainly, no one can look at the career of judge bork being impressed with his extraordinary credentials, a graduate of the university of Chicago Law School, a Phi Beta Kappa and managing editor of that institutions law review, robert bork has twice served on the faculty of Yale Law School and was a professorat that Prestigious Institution for a total of 15 years. Mr. Bork, as you have been told, has also been in the private practice of law on numerous occasions during his career and earned a National Reputation as an outstanding litigator. And from 1973 to 1977, robert bork was solicitor general of the United States, a job universally recognized as one requiring the talents of a lawyers lawyer. Since 1982, robert bork has served as judge on the Circuit Courtof appeals for the District Of Columbia, and during that time has, in my judgment, accumulated a remarkable record. A record, i respectfully submit, that should be most relevant to this committees consideration. Of the 426 cases in which he has participated, judge bork has been the author of the majority opinion in 106 instances. With respect to those 106 majority opinions, it is deserving of emphasis that he never has been reversed by the Supreme Court. Furthermore, of the 401 cases in which judge bork joined with the majority, none have been reversed by the United States Supreme Court. In addition, judge bork authored dissenting opinions in 25 remaining cases, and the Supreme Court adopted the viewpoint expressed by judge bork in those dissents on six different occasions. Many have offered the observation that judge bork may well have the most remarkable record on appeal of any currently sitting United States federal judge. I think it is a fair conclusion from these statistics that judge borks judicial rulings during these five years have not been at variance with the prevailing views of the current Supreme Court. Frankly, mr. Chairman, i find it personally difficult to reconcile some of the charges that have been levied against judge bork with his record since becoming an appellate federal judge. His judicial philosophy, in practice as well as in theory, is fully consistent with traditional american legal thought. For robert bork, the role of the judge is to apply the intent of the legislature to a legal fact situation. Following the president s nomination of judge bork to the Supreme Court, i reviewed a number of his opinions in the District Of Columbia Circuit Court with particular emphasis on matters of great concern to me, the First Amendment and civil rights cases. Those cases demonstrate that, in application, the result of judge borks philosophy can often be civil libertarian in nature. They certainly do not disclose a view that our constitution should be other than contemporary and workable in a modern society. The appearson to here. From his perspective, a judge may not insert his own personal preferences or political philosophy into a case. The media calls it exercising judicial restraint, but judge bork states it more clearly as the intellectual rejection of judicial imperialism. That is the term he applies to judges who would substitute their private personal philosophy or private political views for that of the legislators who actually wrote the laws. He recognizes that judges are not elected and that under our system of government, it is the elected representatives that ite and amend the laws. I have every confidence to probe and analyze this outstanding lawyer and judge. Robert bork deserves to be judged for the lawyer he actually is and on the basis of how he actually rendered judicial decisions. These hearings afford an opportunity to elicit his views directly rather than leave the record to theoretical speculation. Mr. Chairman, this man is qualified to be an associate justice of the Supreme Court of the United States on the basis of virtually every logical criterion. Thank you. Joe biden thank you very much, congressman. Before i yield to the distinguished Ranking Member of this committee, i suggest you all are welcome to stay and listen to us all. [laughter] once again, showing your good judgment. Thank you, congressman. Colleague and apologize. I should have yelled to you earlier. You have remarks, so please take the time you need. Thank you very much, mr. Chairman. I have had the pleasure of serving with you on this committee, with me as chairman and you as Ranking Member. I have always found you to be fair, courteous and considerate, and i am sure that is the way this hearing will be held. Judge bork, i would like to welcome you and your family here today. I think it particularly fitting that the senate in performing its constitutional duty is considering your nomination to be an associate justice of the Supreme Court at the time we are celebrating the 200th anniversary of the constitution of the United States. Today, the committee begins consideration of this important nomination of judge robert h. Bork to be an associate justice of the Supreme Court. This is the fourth Supreme Court nomination that this committee has considered in the past years. Six in fact, i might say that it is the 20th such nomination that i have had the opportunity to review during my 33 years in the senate. On earlier occasions, i have set forth the qualities i believe a nominee to the court should possess. First, unquestioned integrity, the courage to render decisions in accordance with the constitution and the will of the people as expressed in the laws of congress. Next a keen knowledge and , understanding of the law. Professionals, competency. Next compassion, which recognizes both the rights of the individual and the rights of society in the quest for equal justice under law. Next, proper judicial temperament, the ability to prevent the pressures of the moment from overpowering the composure and selfdiscipline of a well ordered mind. Next an understanding of and , appreciation for the majesty of our system of government in its separation of powers between branches of our federal government its division of , powers between the federal and state governments, and the reservation to the states and to the people of all powers not delegated to the federal government. There is no doubt that the nominee before us today meets these qualifications. His intellectual credentials are impeccable. Phi beta kappa, distinguished professor of law at Yale Law School, and respected author. His experience is extraordinary, in academia, as ageneral practitioner, as solicitor general, and as a judge for the United States court of appeals for the district of for the d. C. Circuit, felt by many to be the second most Important Court in this country. Judge bork has a longstanding reputation for integrity and judicial temperament. On two occasions, judge bork has had his professional qualifications and personal character specifically examined and carefully scrutinized by the american bar association. On both occasions, the aba has given judge bork the highest possible rating for his professional competence, integrity, and temperament. Judge bork is not a new or unknown quantity. He has beenbefore this Committee Twice previously, and both times the committee and the full senate have deemed him worthy of confirmation to be solicitor general and to be a judge of the u. S. Court of appeals for the d. C. Circuit. It is also worthy of note that both times judge bork was confirmed by the full senate, once when democrats controlled the senate and once when republicans did. There was not a single dissenting vote. In fact, if we were to put aside questions of philosophy and ideology, judge bork would in all likelihood already be sitting on the court. However, it is apparent that some would have the issue of philosophy become the standard for whether or not we confirm this nominee for the Supreme Court. This nomination has been delayed longer, by any standard, than any other Supreme Court nomination in the last 25 years, while opponents mount an Ideological Campaign against him. Because so much has been said about the question of philosophy and ideology, i believe we should examine that issue within the context of the nominating process. Some have said that philosophy should not be considered at all in the confirmation process. In fact, i have been incorrectly aligned with that position. And others say that philosophy should be the sole criteria. I reject both of these positions. I believe that a candidates philosophy may properly be considered, but philosophy should not be the sole criteria for rejecting a nominee with one notable exception. The one exception is when the nominee clearly does not support the basic, longstanding consensus principles of our nation. I want to be very clear about this point. I do not believe that philosophy alone should bar a nominee from the court unless that nominee holds a belief that is so contrary to the fundamental, longstanding principles of this country that the nominees service would be inconsistent with the very essence of this countrys shared values. Such a nominees position should be unequivocal and in violation of a basic belief. For example, freedom of speech is a fundamental, accepted principle in this country, but exactly what constitutes speech and whether or not there are limitations on any particular activity, are issues on which reasonable people can disagree. Freedom of religion is an accepted tenet of this country, but whether freedom of religion means that a person in the military can wear religious garb rather than his uniform is a matter that can be, and is, openly debated. That there should be no government governmentestablished religion in america is a fundamental principle, but whether that prescribes prayer in our schools is a matter of accepted public debate and commentary. That discrimination based on race or National Origin is unacceptable is a basic tenet of this nation but there certainly , is no such agreement on the use of preferential quotas. I raise these examples not to launch into a substantive debate on any of these issues, but merely to point out that we should not confuse core, fundamental principles with evolving and debatable applications of these principles. In applying this standard, which could lead to automatic rejectionof a nominee, we must be reasonable. We must apply it in amanner a manner which also protects the basic American Interest of free and open debate on important issues. As the courts, and all americans, grappled with new applications of our principles and new doctrines are created and offered, these evolving decisions are not sacrosanct and above criticism. In fact, debate and discussion of these new ideas is not only welcomed, it is essential. This is a stringent standard, but in my tenure in the senate, this test has never been used to disqualify a nominee because no nominee to the senate. No president has ever sent such a nominee to the senate. To apply a broader philosophical litmus test would put a nominee in jeopardy of being labeled unamerican or unfit if he has ever been in a minority position on any issue. It has been said that since the president uses philosophy to pick a nominee, the senate can use philosophy in evaluating a nominee. A corollary statement should be just as true. When the president does not solely use philosophy to choose his nominee, the senate should not solely use philosophy to reject that nominee. Historically, president s do consider philosophy when appointing nominees to the Supreme Court. That is part of our system of government. It is the manner in which the American People have an opportunity to influence the court. But this president was reelected overwhelmingly when the issue of such appointments was a major, welldiscussed campaign issue. Because this process is well understood by the American People, any nominee selected by a president comes to the senate with a presumption in his favor. Accordingly, opponents of the nominee must make the case against him. That is why opponents of judge bork are trying to fit him into some accepted basis for disqualification or create a new one to defeat him. First, judge borks opponents will try to raise questions about his character and integrity. Failing this, they will assert that he is disqualified by virtue of his philosophy, by labeling him as an extremist or outside the mainstream. This, in essence, refers to the purely philosophical test which i have discussed. A review of judge borks record indicates that he, indeed, is well within the mainstream of legal debate and discussion in this country. His record on appeals is perhaps the best in the country. However, even if a nominee occasionally dissents from a majority view, that should not disqualify him. Although judge bork has been in the accepted majority position almost without fail, there is a grand tradition of legal dissent in this country. As Justice Felix frankfurter said, in this court, dissents have gradually become majority opinions. There certainly is nothing wrong with writing a dissent at any judicial level if it is called for. In fact, integrity demands it. Opponents of this nominee have also surfaced a new theory of balance on the court, that somehow there is a mandated immutable balance on the court. This theory has an inherent problem. When did the court reach the perfect balance . Was it in the warren court, or the courts which preceded the warren court, and which were so greatly overturned by the warren court . Further, does anyone really believe that these proponents of a balance theory would oppose a liberal nominee solely because he had been named to replace a conservative justice . Of course not. More fundamentally, such a theory presupposes that the Supreme Court is infallible, when clearly it is not. Do we really want to enshrine, for all time, every decision the court makes . History gives us many examples of the Supreme Court overruling itself and correcting its own errors. Usually, those who argue balance have certain decisions they do not want reconsidered under any circumstances. On the other hand, i believe the court should be allowed to correct errors it has made. Finally, there is one other issue that should be addressed. I believe, as i have stated before, that the full senate should make the final determination on all nominations. The confirmation process should not stop at the committee level. The constitution requires the advice and consent of the senate, not simply the opinion of anyone committee. Any one committee. I am pleased that both chairman biden and the distinguished majority leader, among others, have indicated that they agree that this nomination should be dealt with by the full senate. Judge bork, welcome again to the committee, and we look forward to your testimony. Joe biden thank you very much, senator. Before we begin with senator kennedys Opening Statement, we will have a vote in the middle of it. I would appreciate it if we not adjourn until the statement is made, and then we will adjourn, all of us at once, and come back afterwards. Senator kennedy. Senator kennedy good morning, judge bork. From the beginning, america has set the highest standards forour for our highest court. We insist that a nominee should have outstanding ability and integrity. But we also insist on even more that those who sit on the Supreme Court must deserve the special title we reserve for only nine federal judges in the entire country, the title that sums up in one word the awesome responsibility on their shoulders, the title of justice. Historically, america has set this High Standard because the justices of the Supreme Court have a unique obligation to serve as the ultimate guardians of the constitution, the rule of law, and the liberty and the quality of every citizen. To fulfill these responsibilities, to earn the title of justice, a person must have special qualities, a commitment to individual liberty as the cornerstone of american democracy a dedication , to equality for all americans, especially those who have been denied their full measure of freedom, such as women and minorities, a respect for justice for all whose rights are too readily abused by powerful institutions, whether by the power of government or by giant concentrations of power in the private sector. A Supreme Court justice must also have respect for the Supreme Court itself, for our constitutional system of government, and for the history and heritage by which that system has evolved, including the relationship between the federal government and the states, and between congress and the president. Indeed, it has been said that the Supreme Court is the umpire of the federal system because it has the last word about justice in america. Above all, therefore, a Supreme Court nominee must possess the special quality that enables a justice to render justice. This is the attribute whose presence we describe by the words such as fairness, impartiality, openmindedness, and judicial temperament, and whose absence we call prejudice or bias. These are the standards by which the senate must evaluate any judicial nominee. And by these standards, robert bork falls short of what americans demand of a man or woman as a justice on the Supreme Court. Time and again, in his Public Record over more than a quarter of a century, robert bork has shown that he is hostile to the rule of law and the role of the courts in protecting individual liberty. He has harshly opposed and is publicly itching to overrule many of the great decisions of the Supreme Court that seek to fulfill the promise of justice for all americans. He is instinctively biased against the claims of the average citizen and in favor of concentrations of power, whether that is governmental or private. And in conflicts between the legislative and executive branches of government, he has repeatedly expressed a clear contempt for congress and an unbridled trust in the power of the president. Mr. Bork has said many extreme things in his comments of a lifetime in the law. We already have a more extensive record of his work and writings than perhaps we have had for any other Supreme Court nominee in history. It is easy to conclude from the Public Record of mr. Borks published views that he believes women and blacks are secondclass citizens under the constitution. He even believes that, in the relation to the executive, that members of congress are secondclass citizens, yet he is asking the senate to confirm him. The strongest case against this nomination is made by the words of mr. Bork himself. In an article he wrote in 1963, during the battle to desegregate lunch counters, motels, hotels, and other public accommodations in america, he referred to the civil rights principle underlying that historic struggle as a principle of unsurpassed ugliness. 10 years later, he recanted his opposition, but in the time since then he has consistently demonstrated his hostility towards equal justice for all. As recently as june of this year, he ridiculed a Supreme Court decision prohibiting sex discrimination and suggested that the extension of the equal protection clause to women trivializes the constitution. In robert borks america, there is no room at the inn for blacks and no place in the constitution for women, and in our america there should be no seat on the Supreme Court for robert bork. Mr. Bork has been equally extreme in his opposition to the right to privacy. In an article in 1971, he said, in effect, that a husband and wife have no greater right to privacy under the constitution than a smokestack has to pollute the air. President reagan has said that this controversy is pure politics, but that is not the case. I and others who oppose mr. Bork have often supported nominees to the Supreme Court by republican president s, including many with whose philosophy we disagree. I voted for the confirmation of chief Justice Burger and also justices blackmun, powell, stevens, oconnor, and scalia. But mr. Bork is a nominee of a different stripe. President reagan has every right to take mr. Borks reactionary ideology into account in making the nomination, and the senate has every right to take that ideology into account in acting on the nomination. Now, mr. Borks supporters are understandably seeking to change his spots and deflect attention from the Public Record of his controversial career. He will have ample opportunity in these hearings to explain, or explain away, the extraordinarily extreme and biased positions he has taken. But a switch at a convenient time should not be sufficient to make mr. Bork one of the nine. Some observers are predicting a bitter battle over this nomination and have suggested that the struggle is reminiscent of the great confrontations over civil rights and equal justice in the past. But those confrontations were inevitable and irrepressible. All americans should realize that the confrontation over this nomination is the result of a deliberate decision by the reagan administration. Rather than selecting a real judicial conservative to fill Justice Powells vacancy, the president has sought to appoint an activist of the right whose agenda would turn us back to the battles of a bitterly divided america, reopening issues long thought to be settled and wounds long thought to be healed. I for one am proud of the accomplishments of america in moving towards the constitutional ideas of liberty and equality and justice under law. And i am also proud of the role of the senate in ensuring that Supreme Court nominees adhere to the tradition of fairness, impartiality, and the freedom from bias. I believe the American People strongly reject the administrations invitation to roll back the clock and relive the more troubled times of the past. And i urge the committee and the senate to reject the nomination of mr. Bork. Joe biden we are recessed for 10 to 15 minutes. Just, welcome back. We will come to order. Toge, i think quite frankly accommodate our brethren between us here, if we went slightly out of order here. I will ask you to be sworn in now before i give my statement, but after you are sworn in, i will give the statement. Judge, do you swear to give at this hearing in response to questions the truth, the whole truth and nothing but the truth, so help you god . Judge bork i do, mr. Chairman. Joe biden show your right hand. Make bork, i would like to an Opening Statement if i may. And i would like to, the position to ask in the staff to settle down behind me here, i would like to welcome you back and partially welcome you to the Senate Judiciary committee. You heard much today, and we have all heard a great deal about the bicentennial of our constitution. A verys only one of important chapter in the history of our people and to the evolution of our unique form of government. From that day in philadelphia to this hour, the heart of the controversy has been over the that is the debate between the tensions between the right of an individual and the will of the majority. As james madison, the father of the constitution said, and i quote, the great object of the constitution is to secure the public good and private rights of the majority faction and at the same time, to preserve the spirit and the form of popular government,. Diseases have turned two centuries. The document we now celebrate, the longest and oldest living constitution over the past 200 years is something that we will formerly celebrate tomorrow. Rude for 200 years, each generation of americans has been called to nurture, defend, define it, and apply it. Our late calling from North Carolina was bond of reminding all of us and quoting an eloquent educator about the ties between the magna carta, the english petitioner rights, the declaration of independence, and the United States constitution. The quote he always used to use was this. These are great documents of history. Cut them and they will bleed. Bleed with the blood of those who fashioned them and those in urgent them nurtured them through the succeeding generations. This is have much to did author our constitution as the 39 men who affixed their signatures to it 200 years ago. Indeed, two years after its signing, following a Better National debate over its ratification at the insistence of the people, the constitution was profoundly and nobles by the addition of what has come to be known as the bill of rights. Before 100 years would transpire, the civil war arrested over the meaning of that constitution and that socalled bill of rights. The civil war, which would and lincolns question whether so many any nation so conceived and so dedicated can long indoor come endure. And from that war would come amendments that would settle the truth that all men are created equal, that gave definition to the civil war amendments to what many thought were meant in the first. For another hundred years past, our own century would be distinguished by a hotly contested struggle to assimilate into the very fabric of the constitution equal protection for the black minorities and women. As surely as those who wage the civil war, those who weighed the theygle for civil rights, infuse the constitution with their own vision. The story of these struggles is the story of what makes america and her people the and the of the world. Envy of the world. In each of these struggles which the individual faced arecalcitrant government, the individual won his or her alwaysalways expanding. America is the Promised Land because each generation bequeathed to their children a promise, a promise that they might not come to enjoy but which they fully expected their offspring to fulfill. So the words all men are created equal took a life of their own, ultimately destined to end slavery and enfranchise women. And the words, equal protection and due process inevitably led to the end of the words, separate but equal, ensuring that the walls of segregation would crumble, whether at the lunch counter or in the voting booth. So, faithful to that tradition, in the ebbing summer of our bicentennial, the constitution must become more than an object of celebration. It is to become once again the center of a critical National Debate over what it is, what it must become, and how it will be applied in a world that neither you nor i can envision at this moment a world of , biotechnical engineering, a world of burgeoning changes in science, a world where once again the rights of individuals , and the right of the government to impact upon them will be put in a different context and in conflict. So lets make no mistake about it, the unique importance of this nomination is in part because of the moment in history in which it comes, for i believe that a greater question transcends the issue of this nomination. And that question is, will we retreat from our tradition of progress or will we move forward, continuing to expandand and and develop the rights of individuals in a changing world which is bound to have an impact upon those individuals sense of who they are and what they can do . Will these ennobling human rights and human dignity, which is a legacy of the past two centuries, continue to mark the journey of our people . So judge, as you well know, this is no ordinary nomination, not merely because you are there. And i must say to you that it must be somewhat daunting, as experienced as you are, to sit there with an array of people here about to question you. It is not an easy position to be in. I am confident, and i am not being solicitous, you will handle it well, but nonetheless, it is not an easy position. But this nomination is morewith , or, with all the respect judge, and sure you would agree, am than about you. In passing on this nomination to the Supreme Court, we must also pass judgment on whether or not your particular philosophy is an appropriate one at this time in our history. You are no ordinary nominee, judge, to your great credit. Over more than a quarter of a century you have been recognized as a leading the , aleadingperhaps the leading proponent of a provocative constitutional philosophy, one that when i was logical i did not go to yale i am not bragging about that but i did not go to yale one where our constitutional law professor would say, and this is such and such, and then, as professor bork at yell says. You have been a man of significant standing in the academiccommunity and thus in a special way, a vote to confirm you requires, in my view an , endorsement of your basic philosophic views as they relate to the constitution. And thus the senate, in exercising its constitutional role of advice and consent, has not only the right in my opinion but the duty to weigh the philosophy of the nominee as it reaches its own independent decision, a view that think you share, but i will ask you about that in the question and answer period. Essentially, the role of this committee as i see it is to provide an opportunity for your advocates and your adversaries, your opponents, the opponents of this nomination and the supporters of this nomination, to present their views for consideration as they cometo the come to the witness table at which you sit. But most of all, it is an important opportunity and it is a required opportunity, and i and my colleagues assure you of the opportunity, to fully offer your views and for members to question you on what you mean by the views that you hold. My role as chairman of the Senate Judiciary committee in my view is not to persuade but to attempt to ensure that the Critical Issues involved in this nomination are laid squarely before my colleagues and the American People. As i made clear when senator baker contacted me and when he and attorney general meese came to see me prior to your selection, as i told them privately, judge, that as a matter of principle i continued to be deeply troubled by many of the things you had written. I would have been less than honest then or now to pretend otherwise. Judge, assuming you mean what you have written, our differences are not personal, they relate to basic questions of principle. I will question you in several areas to determine what our differences mean in terms of real cases with real people, with real winners and real losers. For example, my areas of concern touch the relationship of people of different races in our land whether it was wrong for state courts to enforce covenants that prohibited black couples from buying homes in white neighborhoods, whether the court was wrong in not stopping the u. S. Congress from outlawing literacy tests to protect voting rights, and whether in the future as similar situations arise the court will intervene to protect the rights of the races in this land. I also touch on the basic right of privacy, privacy in our marriages and in raising our children whether the government can prohibit a child from going to a private school , whether the government can prohibit parents from having their children taught a Foreign Language whether anyone can be , subjected to sterilization, be it the government of oklahoma attempting to forcibly sterilize a thief or by a big business which forces a woman to choose between her job and her right to their children. Or whether the government can prohibit a married couple from Birth Control or whether in the future, as populations grow and explode, whether the government can say, you may only have two children. I also touch on the right of free expression, be it political for example, whether Martin Luther king could have been prohibited from advocating violation of immoral segregation laws, or be it artistic for example, can an american be denied the right to create and enjoy literature, painting, sculpture, dance, music, and movies of their choice . I not only think it was wrong for some of these things to have happened in our country, and they did, didbut it was also right for the Supreme Court in , my view, to have stepped in in many of the cases that i made reference to without naming them when it did to protect these rights of individuals against the majority. From much of what i have read, and i honestly believe, judge, think i have Read Everything that you have written, and you havebeen very have been very cooperative. We asked you to provide it and you have literally provided us hundreds of pages of written material. Based on that material, we appear to disagree about whether the Supreme Court was right or wrong in many of these cases. While there is plenty of room for debate about these issues, each of us must take a stand on whether or not we believe the court was wrong in these most critical decisions of our time. I i believe all americans are born with certain inalienable rights. As a child of god, i believe my rights are not derived from the constitution. My rights are not derived from any government. My rights are not denied from derived from any majority. My rights are because i exist, i have certain rights. They were given to me and each of my fellow citizens by our creator and they represent the essence of human dignity. I agree with justice harlan, the most conservative jurist and justice of our era, who stated that the constitution is, quote, a living thing and that its protections are enshrined in majestic phrases like equal protection under the law and due process and thus cannot be, as he said, and i quote, reduced to any formula, end of quote. It is, as the great chief Justice John Marshall said, and i quote, intended to endure for ages to come and consequently to be adopted to the various crises of human affairs, only its great outlines marked, end of quote. For the next 2 weeks or so, obviously only in your case, i hope, dutch for the next couple , of days or so, my colleagues and i, yourself and others, will be engaged in a historic discussion that could affect the direction of our country. I think it would be a disservice to the American People if we allowed that day to be clouded by strident rhetoric from the far left or the far right. Such inflammatory statements only distract from the central focus of these hearings. For better than two decades you have been a distinguished scholar, a man whose ideas have been debated in many constitutional law classes in this country. In your writings you have forthrightly stated your principles. To use your own words in your published Opening Statement, which you have not given yet my philosophy of judging is neither liberal nor conservative. Ien i have been asked, as have been after having read your writings this august, augustwhether i thought you were a conservative or a liberal, my response was just as yours i believe you are neither a conservative nor a liberal. You have a very precise, as i read it, viewing of how to read the constitution. You have suggested equally forthrightly what we should examine in reviewing your nomination when you said, and i am quoting you you look for a track record, and that means you read any article any opinions , they have written. There is no reason to be upset about that, end of quote. I agree with you that there is a consistent thread that runs through your writings. You said just 2 years ago that you, quote, finally worked out a philosophy which is expressed pretty muchin that 1971 indiana law journal piece, end of quote. And your most definitive writing to date has been, as i can read it, that piece. Later you added, my views have remained about what they were. In the end, whatever my reaction or anyone elses reaction to your record, the process of confirmation is best served if we hear each other out and use this unique opportunity to educate ourselves and the American People about your record and what it may mean for the Supreme Court and for the future of this country that we both love very much. Out of respect for you, out of the majesty of the constitution and the greatness of the American People, it seems to me we who preside in this hearing today owe no less. Judge, i would now invite you, if you would like, to make any Opening Statement for as long as you would like and then we will begin with the questioning. I thank you for your indulgence this morning in listening to all of us. Mr. Chairman, thank you very much, and distinguished members of the judiciary committee. I would like first to introduce my family if i may. Please. I apologize. I had an opportunity to meetthem and the hearing has been going on so long i failed to mention that. Please do. Well, one person i cannot introduce to you is my mother, mrs. Elizabeth bork, who is, i am confident, watching on television. My wife, mary ellen bork, in the gray suit, my daughter, ellen bork in the burgundy, my son , charles, and my son robert, junior. And as senator hatch mentioned, mrs. Potter stewart, who is a neighbor of ours, is with us today. Welcome all. Thank you for being here. I want to begin by thanking the president for placing my name in nomination for this most important position. I am flattered and humbled to have been selected. If confirmed, i assure the senate that i will approach the norm assassins is ethically and enormous task energetically and enthusiastically and will endeavor to the best of my ability to live up to the confidence placed in me. I also want to thank president ford and senators dole and danforth and congressman fish for their warm remarks in introducing me to the senate and to this committee. As you have said, quite correctly, mr. Chairman, and as others have said here today, this is in large measure a discussion of judicial philosophy, and i want to make a few remarks at the outset on that subject of central interest. That is, my understanding of how a judge should go about his or her work. That may also be described as my philosophy of the role of a judge in a constitutional democracy. The judges authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American Public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority laws, a majority of the electorate, or what their representatives voted for. The judge, to deserve that trust and that authority, must beevery be very best be every bit as governed by law as is the congress, the president , the state governors and legislatures, and the American People. Including a judge, can be above no oneincluding a judge, can be above, no one including a , judge, can be above the law. Only in that way will justice be done and the freedom of americans assured. How should a judge go about finding the law . The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern whether the lawmakers are the congress of the United States enacting a statute or whether they are those who ratified our constitution and its various amendments. Where the words are precise and the facts simple, that is a relatively easy task. Where the words are general, as is the case with some of the most profound protections of our liberties, in the bill of rights and in the civil war amendments, the task is far more complex. It is to find the principle or value that was intended to be protected and to see that it is protected. As i wrote in an opinion for our court, the judges responsibility is to discern how the framers values, defined in the context of the world they knew, apply in the world we know. If a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American People. That goes well beyond his legitimate power. He or she then diminishes liberty instead of enhancing it. That is why i agree with judge learned hand, one of the great jurists in our history, when he wrote that the judges authority and his immunity depend upon the assumption that he speaks with the mouths of others the momentum of his utterances must be greaterthan greater than any which his personal reputation and character can command if it is to do the work assigned to itif its if it is to stand against the passionate resentments arising out of the interests he must frustrate. To state that another way, the judge must speak with the authority of the past and yet accommodate that past to the present. The past, however, includes not only the intentions of those whofirst made the law, it also includes those past judges who interpreted it and applied it in prior cases. That is why a judge must have Great Respect for precedent. It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as i have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought. Times come, of course, when even a venerable precedent can and should be overruled. The primary example of a proper overruling is brown v board of education, the case which outlawed racial segregation accomplished by government action. Brown overturned the rule of separate but equal laid down 58 years before in plessy v ferguson. Yet brown, delivered with the authority of a unanimous court, was clearly correct and represents perhaps the greatest moral achievement of our constitutional law. Nevertheless, overruling should be done sparingly and cautiously. Respect for precedent is a part of the great tradition of our law, just as is fidelity to the intent of those who ratified the constitution and enacted our statutes. That does not mean that constitutional law is static. It will evolve as judges modify doctrine to meet new circumstances and new technologies. Thus, today we apply the First Amendments guarantee of the freedom of the press to radio and television, and we apply to electronic surveillance the fourth amendments guarantee of privacy for the individual against unreasonable searches of his or her home. I can put the matter no better than i did in an opinion on my present court. Speaking of the judges duty, i wrote the important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. That duty, i repeat, is to ensure that the powers and freedoms the framers specified are made effective in todays circumstances. But i should add to that passage that when a judge goes beyond this and reads entirely new values into the constitution, values the framers and the ratifiers did not put there, he deprives the peopleof their people of their liberty. That liberty, which the constitution clearly envisions, is the liberty of the people to set their own social agenda through the processes of democracy. Conservative judges frustrated that process in the mid1930s by using the concept they had invented, the 14th amendments supposed guarantee of a liberty of contract, to strike down laws designed to protect workers and labor unions. That was wrong then and it would be wrong now. My philosophy of judging, mr. Chairman, as you pointed out, is neither liberal nor conservative. It is simply a philosophy of judging which gives the constitution a full and fair interpretation but, where the constitution is silent, leaves the policy struggles to the congress, the president , the legislatures and executives of of the 50 states, and to the American People. I welcome this opportunity to come before the committee and answer whatever questions the members may have. I am quite willing to discuss with you my judicial philosophy and the approach i take to deciding cases. I cannot, of course, commit myself as to how i might vote on any particular case and i know you would not wish me to do that. I note in closing, though it has been mentioned by president ford, that i have been fortunate to have a rich variety of experience in my professional career in the major areas of private practice, the academic world, government experience, and the judiciary. I have been an associate junior partner and senior partner in one of the nations major law firms. I have been a professor at the Yale Law School, holding two named chairs, as chancellor kent professor, once held by William Howard taft, and as the first alexander m. Bickel professor of public law. For almost 4 years i served as solicitor general of the United States, in which capacity i submitted hundreds of briefs and personally argued about 35 cases before the Supreme Court of the United States. Finally, for the past five years i have been a judge in the u. S. Court of appeals for the District Of Columbia circuit, where i have written, according to my counts, counts of very here this morning thismorningabout 150 opinions, opinions and0 participated in over 400 decisions. I have a record in each of these areas of the law and it is forthis committee and the senate to judge that record. I will be happy to answer the committees questions. Of next, we continue our look back. , i have our portion of the ate