Imágenes de páginas
PDF
EPUB

Wilkey, Malcolm R.:

Page

Letter to Chairman Biden and Senator Thurmond, September 24, 1987...... 6124

[blocks in formation]

Letter to Senator Hatch, with attachments, September 21, 1987 2624 Winter, Judge Ralph K.:

Affidavit, September 25, 1987.

3225

Witness List

6501

Women's Bar Association of the State of New York:

Statement of Committee to Review the Nomination of Judge Robert H.
Bork, September 17, 1987..

6127

Women's Legal Defense Fund, with Federation of Women Lawyers, Judicial
Screening Fund, NOW Legal Defense and Education Fund, Equal Rights
Advocates:

Statement, October 19, 1987.

4531

Yale Law School students:

Record of opposition to Judge Bork's confirmation, September 11, 1987...... 6144 Young, Andrew:

Prepared Statement..

1071

Testimony

1067

Youth for Democratic Action:

Statement of Daniel Press, October 1987.

6145

Zebley, John:

Letter to Chairman Biden, September 13, 1987............

6150

[ocr errors][merged small][merged small][merged small]

WASHINGTON BUREAU

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
1025 VERMONT AVENUE, N.W. SUITE 820. WASHINGTON, D.C. 20005
(202) 638-2269

TESTIMONY
OF

ALTHEA T. L. SIMMONS

DIRECTOR/CHIEF LOBBYIST

WASHINGTON BUREAU, NAACP

ON

THE

NOMINATION OF JUDGE ROBERT H. BORK

FOR

ASSOCIATE JUSTICE OF THE

SUPREME COURT OF THE UNITED STATES

Mr. Chairman, and members of the Senate Judiciary Committee, I am

Althea T. L. Simmons, Director of the Washington Bureau and Chief Lobbyist of the National Association for the Advancement of Colored People. I am appearing on behalf of the NAACP's half-million members in our 2100 branches in the 50 states and the District of Columbia.

The NAACP opposes the nomination of Judge Robert H. Bork. At our 78th Annual National Convention held in New York City in July, 1987, the delegates, as a first order of business, passed unanimously a resolution to oppose the

nomination which said in part:

"...the confirmation of Judge Bork would place on the
High court a justice who does not feel constrained by
precedent and who has favored a congressional limit on
...school desegregation techniques...the Supreme Court is
too important in our thrust for equality and justice to
permit us to sit idly by and watch a whole line of civil
rights liberties be threatened by the appointment of a
Justice whose ideological orientation would deprive us of
the gains achieved in the last twenty years"

Now therefore be it resolved, that the NAACP launch an all-out effort to block the confirmation of Judge Bork."

Mr. Chairman, it has been repeatedly reiterated during the course of

Judge Bork's appearance before the Judiciary Committee that civil rights groups did not oppose Judge Bork when he was up for confirmation before. A question has been raised as to "why now?"

The NAACP did opposed Judge Bork. I wish to excerpt from the testimony

(5309)

of my illustrious predecessor and colleague, the late Clarence Mitchell, Jr. who in hearings before this Committee in 1977, on the nomination of Judge

Griffin B. Bell as Attorney General, stated:

"We, in the NAACP have been before this committee at other
times in opposition to various nominees. The record shows
the performance of nominees after they took office or
after they were rejected by the Senate proved that our worst
fears were confirmed.

We opposed the nomination of Mr. Robert H. Bork to be
Solicitor General of the United States. We were un-
successful in defeating that nomination, and he became
the chief architect of the outgoing administration's programs
that were designed to undermine the guarantee of the 14th
amendment in school desegregation cases. That proposal
which came from the White House, is so bad that even the
gentleman who ran with Mr. Ford as the Vice Presidential
nominee said that he didn't think it had a snowball's
chance in a very warm location.

That is, indeed, what happened. It was assigned to
limbo and not heard of again.

But Mr. Bork seriously prevented it, and I am happy to say,
as we told him in a conference 'We know what you are going
to do to us, and that is the reason we opposed your nomina-
tion. It is nice to be right.

Today, we oppose the elevation of Judge Bork from the Appellate Court to the U. S. Supreme Court. Many of our members and persons opposing the nomination are persons who have literally put their lives on the line to gain the freedom envisioned by the Constitution--a living Constitution. We have looked to the U. S. Supreme Court to interpret the Constitution inclusively. We believe that Judge Bork's views, as we interpret his public statements in articles, opinions, speeches and interviews, as being inimical to the gains made by our struggles for civil rights and individual freedom.

SENATE CONSIDERATION OF IDEOLOGY

The NAACP submits that the Senate can properly consider the ideology of judicial nominees. Professor Olive Taylor, of Howard University in a report, "Two Hundred Years, an Issue: Ideology in the Nomination and Confirmation Process of Justices to the Supreme Court of the United States submitted herewith, states:

Ideology and ideological differences have consistently
been at the core of the unfolding historical process of the
American experience. It was over ideology that the American
colonists broke from British rule. It was ideology that
brought the Founding Fathers to Philadelphia in 1787 to form
'a more perfect union.' The structure of the new American
government was based upon fundamental ideological questions
concerning the nature of government, who shall govern and how
the people shall be governed. Who shall make, execute, and

logical considerations. It was ideology that created political
factions and political parties in this nation; and, indeed,
it was over ideology relative to slavery and the locus of
sovereignty that the nation was torn asunder in a bloody and
brutal Civil War.

Because it is the responsibility of the Supreme Court to
expound the Constitution--the fundamental, organic law of the
land--the ideological leanings of the Justices were and continue
to be of foremost importance in the appointment and confirmation
process. The Justices of the Supreme Court hold the power
through their decisions to determine who and how the people shall
be governed. And their decisions can and have affected the
course of American history, and America's role in the concert
of nations.

As the final arbiter of the American constitutional system, the Court's opinions on the nature and scope of federal and state power, on the functions of the various departments of government, and on the meaning of the written language of the Constitution have built up a great body of living and growing constitutional law. Supreme Court opinions are universally accepted as the final word on constitutional questions.

The above-mentioned report documents how ideology has been a decisive factor shaping this country from its inception. Over the years, the Senate has given no less weight to ideology in deciding to confirm or not to confirm a Supreme Court nominee. The Senate has historically considered the ideology of a Supreme Court nominee in exercising its constitutional duty to give "advice and consent" to the President.

No less consideration should be given to ideology today. It is not "unAmerican" or "un-" anything else for the Senate to refuse to confirm Judge Bork to the Supreme Court solely because of his ideology.

The NAACP holds that Judge Bork does have an ideology. This is found in his prolific writings, speeches and public interviews.

Judge Bork has carved a pathway replete with his views on a number of issues which, if acquiesced to, could not only impact the course of social and economic history but have a profound unsettling effect on our lives for years to come..

Judge Frankfurter said it best that the Court has been from its inception the interpreter of the Constitution and thereby, for all practical purposes, "the adjuster of governmental powers in our complicated federal system."

According to Professor Olive Taylor:

...Ideology is the sine qua non of this unfolding process--
[who shall govern, and how the people shall be governed, and
the nature of the relationship of the Supreme Court to the people
in expounding the Constitution] --and should be. To suggest that
ideology not be taken into account in the judicial noination/
confirmation process is not only unsupported by the historical
record, it narrows the Senate's role in the assessment process
of judicial nominees, thereby frustrating the concept of checks
and balances so central to the Constitution. To look only at
the professional credentials and judicial experience is not

enough. It is like boarding a train because you like the
masterful way in which the parts are put together without
considering where the train will take you.

Judge Bork's philosophy is at substantial variance with numerous areas of settled constitutional law or court decisions. He still does not accept some established doctrines. He finds many settled court precedents unconstitutional in numerous areas and has publicly stated that a judge with his philosophy would have no difficulty overturning some of the court decisions. The NAACP submits, moreover, that the nominee lacks those very qualifications one looks for in a Supreme Court justice--the ability to use his legal skills to respond to the needs of the nation and its people--the judicial temperament or sensitivity to identify the needs of disadvantaged people--the openmindedness to grow and to change long-held views without having a carrot or reward before him.

JUDGE BORK AND ORIGINAL INTENT

Judge Bork said that his judicial approach is to follow the original intent of the lawmakers, be they the constitutional framers and ratifiers

or legislators at the time a statute was passed by the Congress:

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 statutue 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 Amend-
ments--the task is far more complex. It is to find the prin-
ciple 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 appellate court
he sits on], the judge's responsibility is to discern how the
Framers' values, defined in the context of the world they knew,
apply in the world we know'. (Transcript of Hearings, Sept. 15,
1987, p. 117)

The NAACP recognizes that, as a general principle of constitutional or Where statutory interpretation, a judge should find out what the words mean. the words in the constitution or statute are clear and specific, then a judge is restricted in applying those words to the case. But where the words are unclear and general, then a judge has leeway to find out what the general words mean. To do so, a judge looks to the congressional debate, contemporaneous writings at the time the constitution or law was adopted and other sources of

« AnteriorContinuar »