
          Block Bork
          By Ellis, Deborah A.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.
          
        