CONGRESSMAN TED WEISS (D-NY)

TESTIMONY BEFORE THE SENATE JUDICIARY COMMITTEE

ON THE CONFIRMATION OF JUDGE ROBERT H. BORK

SEPTEMBER 29, 1987

Mr. Chairman, Members of the Committee, I appreciate this opportunity to testify on the nomination of Judge Robert Bork for Associate Justice of the Supreme Court.

Last week our nation celebrated the 200th anniversary of the Constitution. On this historic occasion, I urge the Members of this Committee to consider that the confirmation of Judge Bork may very well jeopardize constitutionally guaranteed rights and

freedoms.

You have heard from many distinguished witnesses who have detailed Judge Robert Bork's long record of hostility towards women, minorities, and public interest groups. I share their concern and believe that Judge Bork's record on these issues alone is basis enough to reject his nomination. However, I will not dwell on those issues, which have been passionately and, I think, convincingly discussed already. What is of special concern to me as a Member of Congress, and I'm sure to you as well, is Judge Bork's demonstrated disregard for congressional enactments and Supreme Court precedent.

Articles I, II, and III of the Constitution, establish the Executive, Legislative, and Judiciary branches of Government. Though not explicitly detailed, one of the most critical and well-settled constitutional doctrines is the separation of powers. Judge Bork has demonstrated his disregard for this wellestablished doctrine by consistently advocating the supremacy of the executive branch over the legislative and judicial branches and by limiting the role of the courts as a recourse for Congress in its disputes with the President.

This is a rather stilted view of the philosophy of "judicial restraint," for it requires the courts to defer to the executive branch, and it flies in the face of the traditional view of the separation of powers.

In case after case, Judge Bork has sided with the Reagan Administration against public interest groups and individual citizens. His habitual deference to the Reagan Administration has not only proven injurious to consumers and public interest groups, but has in certain instances, directly subverted the will of Congress.

In McIlwain v. Hayes, 690 F.2d 1041 (1982), the question before the Court was whether the Food and Drug Administration had the authority to permit the sale of inadequately tested color additives twenty-two years after Congress had forbidden

manufacturers to do so. Judge Bork voted in favor of the FDA and the chemical industry.

This decision clearly violated both the spirit and the intent of the 1960 Color Additives Amendments to the Food, Drug, and Cosmetics Act, which stipulated that all color additives were to be deemed unsafe unless proven otherwise. When Congress shifted the burden of proof from the FDA to the industries (in the 1960 Amendments), they provided for a two and one-half year transitional period, during which time, commercially established color-additives were permitted to remain on the market while the industry completed safety testing. The statute permitted the Commissioner discretionary authority to extend the two and onehalf year period only when such an action was consistent with the objective of the Amendments.

A twenty year extension was clearly not what Congress intended. By upholding FDA actions, Judge Bork endorsed the power of the executive to defy the laws laid down by the legislature.

In his dissent, Judge Abner Mikva described Judge Bork's decision as "ignor[ing] the fact that Congress has spoken on the subject and allow [ing] industry to capture in court a victory that it was denied in the legislative arena."

In Natural Resources Defense Council v. Environmental

the EPA's interpretation of provisions of the Clean Air Act despite the fact that in doing so, he clearly ignored Congress' legislative intent.

In passing the Clean Air Act, Congress made it clear that the protection of the public health was to be the governing factor in the setting of emission standards for pollutants; yet in deciding this case, Judge Bork upheld an EPA regulation which put the financial interest of a chemical company ahead of the public health. Judge Skelly Wright described Judge Bork's decision as "coming perilously close to establishing an absolute rule of judicial deference to agency interpretations." concluded that Judge Bork had ignored "both the letter of the Act and the uncompromising spirit behind it."

He

In ruling on cases brought under the Freedom of Information Act, Judge Bork consistently gave the executive branch the authority to withhold information from the public. He sided with the Executive branch in seven out of seven split cases brought under the Freedom of Information Act, despite the fact that in the statute, Congress clearly stated that no deference was to be accorded to the Executive Branch in FOIA cases.

In Crockett v. Reagan, 720 F.2d 1355 (1983), Judge Bork voted to deny Congress the standing to sue the President over the legality of his activities in El Salvador. Bork claimed that Congressional intervention was a violation of the Constitution.

In Abourezk v. Reagan, 785 F.2d 1043 (D.C. cir 1986), Judge Bork supported a State Department decision to deny visas to four aliens because of their political affiliation in spite of the fact the the McGovern Amendment prohibits such an exclusion. In

his minority opinion, Judge Bork described the McGovern Amendment as demonstrating "a lack of deference to the determination of the Department of State."

Are we, as Members of Congress, to refrain from passing Tegislation we deem necessary and important for fear of showing a #lack of deference" to the executive branch?

It is clear from these examples that Judge Bork does not hesitate to uphold Administration policies, even in cases where such rulings directly contravene congressional statute and intent.

Serious questions are raised about whether, as a member of the nation's highest court, Judge Bork would require the executive branch to adhere to the Constitution.

Robert Bork has also indicated that, as a Supreme Court Justice, he would not feel obliged to uphold Court precedent on constitutional questions. Despite his recent attempt to convince this Committee that he would respect Court precedent, Judge Bork's record stands his objections to many of the leading Supreme Court decisions are passionate and entrenched.

And,

Judge Bork has candidly acknowledged that he has in mind a

specific agenda of Supreme Court decisions he would like to

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reopen ("A Talk with Robert Bork, "District Lawyer, vol. 9, no.5, May/June 1985). Such an agenda belies the very essence of the judiciary objectivity and openmindedness.

The Supreme Court is not an executive agency. We can not permit a President to undermine the independence of this coequal branch of government. The Framers of the Constitution divided responsibility for the appointment of Supreme Court Justices to, in the words of Alexander Hamilton, "prevent the President from appointing Justices to be the obsequious instruments of his pleasure." The Senate's role in the confirmation process is vital to the preservation of the separation of powers.

The Senate owes no special deference to the President's preferences.