Edition: U.S. / Global

Excerpts From Questioning of Judge Bork by Senate Committee Chairman

Published: September 16, 1987

Senators asked Judge Robert H. Bork his opinions on a variety of issues. Here are excerpts of their questions and his answers, as recorded by The New York Times.

SENATOR JOSEPH R. BIDEN Jr.: I'm sure you know that one question to be raised in these hearings is whether or not you're going to vote to overturn Supreme Court decisions, which is obviously your right as a Supreme Court Justice if you are confirmed. In 1981 in testimony before the Congress, you said, quote, ''There are dozens of cases,'' unquote, where the Supreme Court made a wrong decision. And this January in remarks to the Federalist Society you implied that you would have no problem in overruling decisions based on a philosophy or rationale that you rejected. And in an interview with the District Lawyer magazine in 1985 you were asked if you could identify cases that you think should be reconsidered. You said, and I again quote, ''Yes I can, but I won't.'' Would you be willing for this committee to identify the dozens of cases that you think should be reconsidered.

JUDGE ROBERT H. BORK: Well, Mr. Chairman, to do that I'm afraid I would have to go out and start back through the casebooks again to pick out the ones. I don't know how many should be reconsidered. I can discuss with you the grounds upon - the way in which I would reconsider them. Let me mention that Federalist Society talk, which was given from scribbled notes - I had some but I scribbled something in the margin which I got up and said in response to another speaker - and it was that a non-originalist decision, by which I mean a decision which does not relate to a principle or value the ratifiers enacted in the Constitution could be overruled.

If you look at the next paragraph of that talk, which was the written part - written-out part and not the extemporized part - it contradicts that statement, because the very next paragraph states that the enormous expansion of the commerce power -Congress's power under the commerce clause of the Constitution - is settled and it is simply too late to go back and reconsider that, even though it appears to be much broader than anything the framers or the ratifiers intended.

So there is in fact a recognition on my part that stare decisis, or the theory of precedent, is important. And in fact I would say to you anybody who believes in original intention as the means of interpreting the Constitution has to have a theory of precedent because this nation has grown in ways that do not comport with the intentions of the people who wrote the Constitution - the commerce laws is one example - and it is simply too late to go back and tear that up. A Restrictive Racial Covenant

I cite to you the legal tender cases. Scholarship suggests - these are extreme examples, admittedly - scholarship suggests that the framers intended to prohibit paper money. Any judge who today thought he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench.

...The case that has come up and mentioned I think in your opening statement, Shelley against Kramer. Shelley against Kramer was a case decided under the Fourteenth Amendment. The 14th Amendment, as we all know, applies only when government acts, when government coerces and denies equal protection of the laws or due process. That was a racial covenant - a restrictive racial covenant case. And the Court held that when a state court enforced that contract, that was action by the Government and hence the Fourteenth Amendment applied to private action.

I have never been for racially restrictive covenants. I argued in the Supreme Court that racially discriminatory private contracts were covered by Section 1981, a famous post-Civil War enactment, and outlawed as such by that statute; that was Runyan against McCrary.

BIDEN: Did it antedate the Shelley case.

BORK: Oh yes, yes; the difficulty with Shelley was not that it struck down a racial covenant, which I'd be delighted to see happen, but that it adopted a principle which, if generally adopted, would turn almost all private action into action to be judged by the Constitution. Let me give you an example.

If people at a dinner party get into a political argument and the guest refuses to leave when asked to do so by the host, and finally the host says - calls - the police to have the unwanted guest ejected.

Under Shelley against Kramer, that would become a state action, and the departing - or guest - could raise the First Amendment. His First Amendment rights had been violated because a private person got sick of his political diatribe and asked him to leave and the police assisted him. In that way any contract action, any court action, any kind of action can be turned into a constitutional case. Now, I'm not alone in criticizing Shelley against Kramer. Criticism of Connecticut Case

BIDEN: Well, let's talk about another case. Now let's talk about the Griswold case. Now, while you were living in Connecticut, that state had a law that made - I know you know this, but for the record - that a crime, that it made it a crime for anyone, even a married couple, to use birth control.