The U.S. Supreme Court’s 1954 decision outlawing racial segregation in public schools in the 50 states “was clearly correct and represents perhaps the greatest moral achievement of our constitutional law,” Judge Robert H. Bork said last week in his opening statement to the members of the Senate panel considering his nomination to the Court.
But in subsequent questioning, the federal appellate judge and former Solicitor General and Yale University law professor said he could find no basis in the Constitution for the Court’s decision in a companion case to Brown v. Board of Education that struck down segregation in the District of Columbia’s schools.
Judge Bork moved quickly to note that although he believes the Court’s legal reasoning in the District of Columbia case strayed from the original intent of the Constitution’s framers and ratifiers, his doubts “do not mean that I would ever dream of overruling” that decision. He added: “I want to make it clear that segregation is not only unlawful but immoral.”
“That’s a very uneasy conclusion,” responded Senator Arlen Spector, the Pennsylvania Republican who posed the question on desegregation. He said Judge Bork’s response appeared to leave him “a significant distance” from his core legal philosophy that judges should never discern and enforce rights in the Constitution that were not placed there by the document’s framers.
Other members of the Senate Judiciary Committee followed similar lines of questioning--particularly on the issue of due process of law--in apparent efforts to determine whether Judge Bork would selectively apply his philosophy to strike down laws he disagreed with and to affirm those he supported.
The exchange between Senator Spector and Judge Bork occurred on the second day of hearings on his nomination, which many political4observers have described as the most momentous of the Reagan Administration.
Judge Bork has been selected to replace Associate Justice Lewis F. Powell Jr., a pragmatic moderate who often cast the swing vote on such issues as affirmative action and prayer in public schools.
Groups for and against his nomination have each argued that, if confirmed for the post, Judge Bork would shift the ideological balance on the Court to the right. In his opening statement, however, Judge Bork said his “philosophy of judging is neither liberal nor conservative.”
The hearings on Judge Bork’s nomination are expected to continue through this week. It is not clear whether the full Senate will have an opportunity to vote on the nomination before Oct. 5, the opening day of the Court’s 1987-88 session.
The following are highlights from Judge Bork’s testimony:
In his opening statement, Judge Bork said that in his view, the primary responsibility of judges “is to discern how the framers’ values, defined in the context of the world they knew, apply in the world we know.”
“If a judge abandons intentions as his guide, there is no law available to him and he begins to legislate a social agenda for the American people,” he continued. “That goes well beyond his legitimate power.”
In his statement, he also said judges “must have great respect for precedence.”
“Times come, of course, when even a venerable precedent can and should be overruled,” he said, citing Brown v. Board of Education as “the primary example.”
Judge Bork said he has “never thought through” his position on the Court’s rulings on the separation of church and state in the context of public education. He emphatically denied, however, that he endorsed the legality of spoken prayer in schools in speeches at the University of Chicago in 1984 and the American Enterprise Institute in 1985. (See Education Week, Sept. 9, 1987.)
On the issue of affirmative action, Judge Bork said: “As a policy matter, any long-term institution of quotas worries me very much.”
During questioning on his role as Solicitor General during the Watergate scandal, Judge Bork recalled that he was writing a letter on the Bill of Rights to a 3rd-grade class on the afternoon of Oct. 20, 1973, when Elliot L. Richardson, the attorney general, informed him that neither he nor his deputy, William D. Ruckelshaus, would obey President Nixon’s order to fire Archibald Cox, the Watergate special prosecutor.
“That was the first time it occurred to me that I was third in command at the Department of Justice,” Judge Bork said.
His firing of Mr. Cox that evening and the resignations of Mr. Richardson and Mr. Ruckelshaus came to be known as the “Saturday Night Massacre.”
