By Deborah A. Ellis
Vol. 9, No. 3, 1987, pp. 1-2
The most appropriate celebration of our Constitution in this bicentennial year would be the defeat of President Reagan’s nomination of Judge Robert H. Bork to the Supreme Court. Defeating Bork would demonstrate that we, the people, reject the Administration’s view of itself as above the law, and embrace a vision of our liberties and possibilities that is radically different from that of Judge Bork’s.
The continuing revelations in the Iran-Contra hearings prove that this is an administration with little regard for the Constitution’s fundamental separation of powers. High-ranking officials have acknowledged without shame that they lied to Congress and disregarded its prohibitions on aid to the Contras. Such an administration should not be permitted to extend its influence into the next century by making any appointment to the third co-equal branch of government, the Supreme Court.
The nomination of Bork is especially egregious because his confirmation would fundamentally alter the Supreme Court’s stance toward the protection of individual rights. Perhaps only Reagan would have the hubris to make such an ideological nomination at a time when his own Administration is under investigation for lawlessness.
With Bork’s nomination, President Reagan may hope to realize goals his Administration has otherwise been unable to accomplish, and he will succeed unless the Senate, in a wise exercise of its constitutional duty of advice and consent, rejects the nomination; Bork would replace Justice Lewis Powell, who often provided a swing vote in important civil rights and civil liberties cases.
Bork would not come to the Court as an unknown
entity. As a Yale Law School professor, as Solicitor General under President Nixon, and now as a judge on the Court of Appeals for the District of Columbia, Robert Bork has condemned the Supreme Court’s efforts in areas including remedies for racial discrimination such as busing and affirmative action, voting rights, abortion, contraception, women’s rights, protection for free expression, and constitutional protection for the accused. In short, Judge Bork believes that the Court’s judicial responsibility to protect individual rights should be severely restricted. Such a view would relegate the Supreme Court to the same position that this Administration puts Congress, leaving the Executive with unfettered discretion.
Bork’s views on civil rights would compromise many of the gains made in the last thirty years in school desegregation, affirmative action, and voting rights. In a 1963 article for the New Republic, Bork opposed provisions of the Civil Rights Acts of 1964, which required business to serve customers without regard to race, arguing that the act threatened “a loss in a vital area of personal liberty,” i.e., the liberty of those who practiced racial discrimination. Bork later retracted this position, but it is significant that he opposed basic civil rights protections at that pivotal point in history.
In a 1971 article in the Indiana Law Journal, Bork rejected the “one man, one vote” formula set forth in the 1964 case, Reynolds v. Sims, as too “rigid” and lacking “a single respectable supporting argument.” On several occasions, Bork has stated his opposition to busing as a remedy for school segregation. For example, in 1972 he was the only law professor to testify before the Senate in favor of the Nixon Administration’s proposal to curb remedies for school segregation.
Most importantly for thousands of American women Bork has vigorously criticized Roe v. Wade, the 1973 Supreme Court decision which protects a woman’s right to abortion, on the grounds that the Constitution does not protect privacy rights. Because four other members of the court (Rehnquist, White, O’Connor and Scalia) have also expressed their disagreement with Roe, the decision might well be overturned or significantly restricted in the next few years if Bork is confirmed. Bork’s rejection of privacy rights also has implications for homosexual rights and even the right of married couples to use contraceptives.
Judge Bork’s general insensitivity to women’s issues is highlighted by two recent opinions. In a sexual harassment case, Vinsen v. Taylor, Bork’s suggestion that sexual harassment should not be recognized as a cause of action under Title VII was rejected unanimously by the Supreme Court in an opinion written by Justice Rehnquist. And in a case involving American Cyanamid’s “fetus protection” policy, which requires women workers to either become sterilized or lose their jobs, Bork ruled that the Occupational Safety and Health Act did not prohibit the company’s policy.
Bork describes himself as a believer in “judicial restraint” and the doctrine of original intent, stating that the Constitution should be interpreted in accordance with the intentions of the framers. Thus, for example, Bork is unwilling to question the death penalty because it is “assumed to be an available penalty in the Constitution itself.” However, examination of some of Bork’s decisions reveals that he uses both theories selectively. He has practiced judicial restraint more vigorously when individual rights are at stake than when corporate interests are at issue. Many of the cases that come before Bork at the circuit court level question how much deference should be paid to decisions of administrative and regulatory agencies. Although Bork advocates deference to agency decisions, in practice he has reserved this deference to agency decisions supporting corporate interests. For example, in the American Cyanamid case, he ruled in favor of the company, even though OSHA argued that the workers involved were protected by the Occupational Safety and Health Act.
The Senate should block Bork’s nomination. Both the text of the Constitution and the history of Supreme Court appointments make plain that the Senate’s duty in confirming a nominee is as important as the President’s. To borrow from Bork’s own “original intent” analysis, it is clear that the signers of the Constitution believed it proper to oppose a Supreme Court nominee on political grounds. In 1795 when George Washington nominated a lawyer with impeccable credentials, Chief Justice John Rutledge of South Carolina, the Senate rejected the nomination fourteen to ten for political reasons; three of the fourteen rejecting Senators were signers of the Constitution. In total, the Senate has rejected almost twenty percent of Presidential Supreme Court nominees.
The Senate should carefully scrutinize not only Bork’s actions in dismissing Watergate special prosecutor Archibald Cox in 1974, but also his view of the Supreme Court’s function, a view that jeopardizes the Court’s role in protecting individual rights against the majority.
Deborah Ellis is a lawyer in New York. She previously practiced in Alabama, where she also clerked for a federal circuit judge.