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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 union

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