33 Union v. American Cyanamid Co., 741 F.2d 444 (D.C. Cir. 1984), he concluded that the Occupational Safety and Health Act of 1970 did not ban an employer's "fetus protection policy" that permitted women of childbearing age to work in a certain plant department only if they were surgically sterilized. Judge Bork admitted the Act "can be read, albeit with some semantic distortion, to cover the sterilization exception contained in American Cyanamid's fetus protection policy." 741 F.2d at 447.22. Nonetheless, he looked to "precedent, usage, and congressional intent," id. at 448, to conclude that the policy was not covered and therefore not prohibited. He said: "The women involved in this matter were put to a most unhappy choice. But no statute redresses all grievances, and we must decide cases according to law." Id. at 450.** Judge Bork took a markedly different approach in Planned Parenthood Fed'n of America v. Heckler, 712 F.2d 650 (D.C. Cir. 1983), to advocate a result similarly adverse to women's legal interests. There, he wrote an opinion that did not just interpret statutory language and apply its policy, but also showed how that policy could be circumvented. The Planned 2 2 The Act requires employers to provide "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm * * *." 29 U.S.C. § 654(a)(1). 33 Judge Bork similarly protested in Vinson that he was constrained not to reach a result that would afford redress. See Vinson, supra, 760 F.2d at 1333 n.7 ("Harassment is reprehensible, but Title VII was passed to outlaw discriminatory 34 Parenthood case struck down the so-called "squeal rule" promulgated by the Department of Health and Human Services, which required recipients of federal family planning services grants to notify parents or guardians when prescription contraceptives were provided to minors. The court found that the 1981 amendment to Title X of the Public Health Service Act, upon which the agency relied, did not authorize the rules; instead, the court said, "these regulations not only violate Congress' specific intent as to the issue of parental notification, but also undermine the fundamental purposes of the Title X program." 712 F.2d at 656. Judge Bork concurred in the judgment that Title X did not authorize the rule. Id. at 665. Nonetheless, he dissented from the disposition of the case, contending that the case should have been remanded to the agency for reconsideration because "it is arguable that the agency could correct its initial errors and lawfully reissue the rule." Id. at 667. He went on to explain how, in his view, the rule could lawfully be reissued. See id. at 667-68. Although Judge Bork couched his opinion in the language of restraint, claiming that the majority had decided too much, id. at 667, his own approach was plainly unrestrained as he instructed the agency how to achieve its purpose. Further, as the majority pointed out, the remand he called for was wholly unnecessary since the agency was always "free to issue new and different regulations" consistent with congressional intent. F.2d at 665 n.*. 712 35 In sum, although Judge Bork professes judicial restraint in the application of statutes, the results that he reached in all of the cases described above are remarkably consistent on the merits and plainly inconsistent with respect to the degree of restraint he exercised. Even where doing so required an active judicial posture, Judge Bork advocated a result adverse to women's interests in every one. While it is impossible to predict with precision Judge Bork's votes as a Supreme Court justice, there is every reason to conclude that he would actively seek to implement his views with respect to the Constitution, and that he would continue his judicial record of restrictive interpretations of women's statutory rights. Judge Bork's judicial record profiled in this report stands out not only because of the results he has reached, but also because of the aggressive way in which he has sought to advance his views. On the basis of his own words, as well as his record on the bench, it is clear that he would be an activist justice.” 24 This activism is manifest in the unusual steps he has taken to articulate his positions. For example, in the sexual harassment case, King v. Palmer, supra, he filed a statement concurring in the denial of rehearing en banc, on the denial of the motion of the United States for time to consider filing an amicus brief. In Franz v. United States, supra, he filed a separate statement to express his position not when the panel opinion was issued, but more than a month later. See 712 F.2d at 36 Moreover, as a Supreme Court justice, Judge Bork would be free to overturn Supreme Court precedents, when, as a judge on the Court Judge Bork has of Appeals he has been bound to follow them. Judge Bork's long-held and well-documented views regarding the appropriate mode of constitutional interpretation cannot be dismissed as the scholarly musings of a conservative and provocative academician that are not likely to be put into practice." To the contrary, the full range of his writings and statements strongly suggests that he believes that Supreme Court justices should disregard precedent if it conflicts with their view of proper constitutional interpretation. Judge Bork stated his views on constitutional precedent most baldly in the confirmation hearings on his nomination to the U.S. Court of Appeals for the District of Columbia Circuit: "The only cure for a Court which oversteps its bounds that I know of is the appointment power[.]" Confirmation of Federal Judges: Hearings Before the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 7 20 In a recent interview Judge Bork affirmed the constancy of his views regarding the proper role of the courts. When asked if his views in this regard had changed since he became a judge, he responded in the negative: "[T]he fact is no, my views have remained about what they were. After all, courts are not that mysterious, and if you deal with them enough and teach their opinions enough, you're likely to know a great deal. So when you become a judge I don't think your viewpoint is likely to change greatly." Lacovara, A Talk with Judge Robert H. Bork, Dist. Law., June 1985, at 29, 31. 37 26 (1982) (Testimony of Robert H. Bork). He elaborated: "For example, if a court became convinced that it had made a terrible mistake about a constitutional ruling in the past, I think ultimately the real meaning of the Constitution ought to prevail over a prior mistake by the court." Id. at 13. See also Deniston, supra, at 25: "Q: Justice William H. Rehnquist, for example, constitutional litigation at the Supreme Court level, a That is "A: That's not peculiar to Justice Rehnquist. ("Democratic 26 See also Bork, Society, supra, at 6. responses to judicial excesses probably must come through the replacement of judges who die or retire with new judges of different views.") "Formal adherence to precedent is not the only consideration in determining whether a judge truly observes the doctrine of stare decisis in decision making. A judge's actual record in applying precedent is also highly relevant to the inquiry. Even where, as a circuit court judge, Judge Bork frequently stated that he was bound by Supreme Court precedent, see, e.g., Dronenburg v. Zech, 741 F.2d at 1396 n. 5; Franz v. United States, 712 F.2d at 1438, he showed a willingness to Interpret precedent loosely to support his ends. For example, in Franz v. United States, supra, he would not have accorded any constitutional rights to the father despite his free acknowledgement that "the [Supreme] Court has fashioned both a substantive and procedural constitutional law of family relations * * *." 712 F.2d at 1438. Nothing in Judge Bork's record |