IV

C. Judge Bork's Denial of the Right to Privacy Places the Entire
Line of Privacy Decisions at Risk, and Is Likely to Prevent
any Subsequent Development and Extension of It..

II. Civil Rights......

A. Judge Bork Has Opposed Civil Rights Legislation.

B. Judge Bork Has Criticized the Decision Banning Enforcement
of Racially Restrictive Covenants.

C. Judge Bork Has Rejected the Decision Banning School Segre-
gation in Washington, D.C

D. Judge Bork Has Criticized the Poll Tax Decision.....

E. Judge Bork Has Criticized the One Person, One Vote Decisions
F. Judge Bork Has Criticized Decisions Upholding a Ban on Liter-
acy Tests.....

III. The Equal Protection Clause and Gender Discrimination

A. Prior to the Hearings, Judge Bork Did Not Include Women
Within the Coverage of the Equal Protection Clause
B. Judge Bork's Testimony at the Hearings Was His First Public-
ly Expressed Approval of Including Women Within the
Scope of the Equal Protection Clause

C. Judge Bork's "Reasonable Basis" Standard Does Not Provide
Women with Adequate Protection and Is Not the Standard
Used by Justice Stevens....

IV. First Amendment

A. Dissident Political Speech.

B. While Judge Bork's Testimony About First Amendment Pro-
tection for Art, Literature and Expressive Speech Was Some-
what Reassuring, it Nonetheless Must Be Read Against the
Background of His Prior Statements

V. Executive Power.

A. Judge Bork Has a Restricted View of Congress's War Powers....
B. Judge Bork Has a Narrow View of Congress's Power To Limit
Intelligence Activities...

C. Judge Bork Has Said that the Special Prosecutor Legislation Is
Unconstitutional......

D. Judge Bork Has Opposed the Notion of Congressional Standing
to Challenge Presidential Actions.......

E. Judge Bork's Views on Executive Privilege Are Entirely Con-
sistent with and Analogous to His Position on Congressional
Standing.

VI. Watergate.....

A. Judge Bork's Actions During and After the Saturday Night
Massacre Remain Controversial...

B. Judge Bork's Discharge of Special Prosecutor Archibald Cox
Violated an Existing Justice Department Regulation Which
Had the Force and Effect of Law...

C. The Evidence and Testimony on Certain Factual Questions Are
Contradictory. But at a Minimum They Establish that Judge
Bork's Actions Immediately Following the Saturday Night
Massacre Reveal a Misunderstanding of the Separation of
Powers

A. Judge Bork's Antitrust Theory Was Well Established Prior to
the Hearings....

VII. Antitrust

B. Judge Bork Has Shown Little Respect for Supreme Court
Precedent in the Field of Antitrust..

VIII. Judge Bork's Actions in Vander Jagt v. O'Neill.

IX. Judge Bork's Roles as Solicitor General and as a Court of Appeals

C. Judge Bork's Willingness to Ignore the Will of Congress in the
Antitrust Area Sharply Conflicts with His Professed Defer-
ence to the Will of the Majority

76

78

81

81

B. Court of Appeals Judge....

84

X. Judge Bork's So-Called "Confirmation Conversion:" The Weight the
Senate Must Give to Newly Announced Positions..

93

96

Part Four: Conclusion.....

100

Appendix: List of Witnesses

INTRODUCTION

"We, the People of the United States, in Order to form a
more perfect Union, establish Justice, insure domestic Tran-
quility, provide for the common defence, promote the gener-
al Welfare, and secure the Blessings of Liberty to ourselves
and our Posterity, do ordain and establish this Constitu-
tion for the United States of America.'

Our nation has flourished for 200 years under the Constitution and the tradition of individual liberty in which it was conceived. When throughout our history that tradition has been challenged, the Constitution and the ideals it embodies have emerged victorious. The nation has grown stronger with each victory.

The Supreme Court has served as the last bulwark of protection for our rights when the government has unduly intruded into the realm of individual liberty. So it was for our parents and grandparents; and in our complex and often intrusive modern society, the Court must be ever more vigilant to protect the liberty of our children and grandchildren.

For that task, we need Supreme Court justices who understand that "the spirit and grandeur of the Constitution lies in its magnificent abstractions and its deliberate ambiguities," and who are prepared for the profound work of applying that document to the "untidiness of the human condition." (Testimony of Judge Shirley Hufstedler, Comm. Print Draft, Vol. 2, at 921, 923.) We need justices who understand and accept that

"LjJustice," "liberty," "welfare," "tranquility," "due proc-
ess," "property," "just compensation" are neither neutral
nor static concepts or principles. They are words of pas-
sion. They are words of dedication. They are words that
cannot be drained of their emotional content and carry
any meaning. None can be cabined without destroying the
soul of the Constitution and its capacity to encompass
changes in time, place, and circumstances. (Comm. Print
Draft, Vol. 2, at 923.)

The committee has concluded that the judicial philosophy and approach that Robert H. Bork would bring to the Court are inadequate for these great responsibilities. His jurisprudence fails to incorporate the ennobling concepts of the Constitution. It is thus fundamentally at odds with the express understanding of the Framers and with the history of the Supreme Court in building our tradition of constitutionalism. By depriving the Constitution of its spirit, that philosophy threatens the vitality of our tradition. Above all, our nation demands that the Supreme Court exercise wisdom and

VIII

statesmanship in mediating conflicts spurred by growth and change in a dynamic society.

This report canvasses the record of significant issues that were developed at the committee hearings. All Senators subscribing to this report concur that each of these issues was relevant to some members of the committee in reaching the recommendation that the Senate not consent to this nomination. But, individual Senators may not agree with the conclusions drawn in every section.

100TH CONGRESS 1st Session

EXEC. REPT.

SENATE

100-7

NOMINATION OF ROBERT H. BORK TO BE AN ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT

OCTOBER 13, 1987.-Ordered to be printed

Mr. BIDEN, from the Committee on the Judiciary,
submitted the following

REPORT

together with

ADDITIONAL, MINORITY, AND SUPPLEMENTAL VIEWS

The Committee on the Judiciary, to which was referred the nomination of Judge Robert H. Bork to be an Associate Justice of the United States Supreme Court, having considered the same reports unfavorably thereon, a quorum being present, by a vote of nine yeas and five nays, with the recommendation that the nomination be rejected.