On Assignment; 198; Library Footage, Senator Jeff Bingaman (D, New Mexico) on Senate Floor Explaining Why He is Voting Against Confirmation of Judge Bork to Supreme Court.

You Can you Please as President President this morning, I announced that I would vote against the confirmation of Judge Robert Bork

for the position of Associate Justice of the U.S. Supreme Court. At that time, I, at this time, I wish to explain the reasons for my decision and a little more depth for my colleagues. Mr. President, this nation is at an economic crossroads, and over the next five or ten years, the President and the Congress will have to continue to confront the critical question of how we're going to reverse some of the trends, which signal major structural problems in our economy. My colleagues have just alluded to one of those, the high budget deficits, higher trade deficits, and declining standard of living. Our highest priority over the next decade needs to be to debate and decide on strategies for making this nation once again economically prosperous in a global, very competitive international marketplace, and in doing so to ensure that all of our children, including our daughters and our Hispanic,

Native American, Black, and poor children, fully participate in that prosperity. The economic challenge ahead of us will require an almost single-minded commitment, an unwavering will, and great perseverance. We'll have to focus our time and energy and hard work and resources on building stronger families, giving our children a quality education, helping women to become full in equal participants in our economy, retraining our displaced workers and exploiting our research and new technologies to produce greater economic opportunity and a higher standard of living for all of our people. We can only meet this challenge, Mr. President, if all of our people, including our women, our racial minorities, and our poor, can confidently know that they will eventually enjoy their fair share of that economic prosperity. We simply cannot afford to risk an era of social strife or division that would either distract us

from this central challenge or shatter that confidence. This is why I'm opposing the nomination of Judge Bork for if the Senate confirms his nomination, I believe that we would risk spending a substantial part of the next decade, not debating these key questions, but rather debating legislation that attempts to restore previous Supreme Court precedents, or to correct future Supreme Court decisions that do not follow the logic of existing Supreme Court precedents. We would run the risk that in the area of family privacy and in equal protection of the laws for women and racial minorities, old wounds would be reopened, and strife and division among large segments of our people will demand our time and energy and concern. Instead of consolidating the national consensus that we have achieved on the need for personal and family privacy, and for equal protection for women and minorities, and building on that consensus

to focus the nation's collective will on the great economic task ahead, and we may risk destroying that consensus. We may risk shattering a unified commitment to meeting the economic challenge, and we may end up spending much of our precious time, energy and concern, fighting each other over issues which have already once been settled, instead of competing as one nation in the international marketplace. Although we cannot know for certain what cases the Supreme Court will confront in the future on how Judge Bork would vote on any particular case, I've concluded that in confirming him, we run a substantial risk that we invite an era of internal dispute and disaffection, and I'm not willing to run that risk. Clearly, if Judge Bork still holds to his writings when he makes decisions on the court, this concern is well-founded. His professional writings over the past 25 years, the very peak of his adult life

would seem to require him to vote to overrule or modify countless Supreme Court decisions about family privacy and equal protection of the law. But I do not hold him to those writings. Rather, I've reviewed the modifications and qualifications that he's offered to the Judiciary Committee in this hearing just concluded, and I take his hearing testimony at its face value. I still conclude that the risk we take in voting to confirm his nomination is unacceptable. Judge Bork has repeatedly criticized cases which have defined a sphere of personal liberty protecting certain aspects of personal and family privacy. Those cases upheld the right of married couples to use contraceptives, the right of parents to make decisions about how to bring up their children, and the right not to be sterilized against one's will. As recently as March 31st of 82, Judge Bork said that in not one of the privacy cases

could the result have been reached by interpretation of the Constitution. In his words, these cases are quote, indefensible in quote. Intellectually empty and unconstitutional because Judge Bork could not find the right of privacy specified in any particular provision of the Constitution. Judge Bork essentially reaffirmed that view in his testimony before the Judiciary Committee. He said the right of personal and family privacy was undefined and free-floating. In testimony about the Griswold case, which recognizes the right of a married people to obtain and use contraceptives, he stated that he still could find no acceptable constitutional authority for that holding. He indicated that he was unsure whether the Ninth Amendment could be a source of such privacy rights, even though, as recently as 84, he had said that with some conviction that judges may be required to ignore the provision and treat the Ninth Amendment as non-existent, as though it were nothing more

than a water blot on the document to use his own words. Finally, Judge Bork's testimony reveals no commitment to treat the personal and family privacy cases as established and subtle law. In fact, when pressed to list those lines of cases which he had criticized but which he viewed as so established as to preclude their being overruled, Judge Bork excluded the privacy cases. During the hearings, Judge Bork surprised many senators when he attempted to reverse his longstanding position on the application of the Equal Protection Clause of the Fourteenth Amendment. Less than three months ago, he had said that, quote, the Equal Protection Clause probably should have been kept to things like race and ethnicity, in quote. Thus, recently reaffirming his longstanding view that the Supreme Court should refer the rights of women to the political process. But at the hearings, he said that now he was of the view that the Equal Protection Clause applied to women,

as well as people of different races, provided that it only protected all of them against, quote, unreasonable legislative classifications. This supposedly new, reasonable test gives me no comfort. In fact, it alarms me more. It represents a significant step backward from the strict and intermediate judicial scrutiny tests now applied by the Supreme Court to cases involving race discrimination and discrimination against women respectively. And as a lawyer, I know how easy it is to concoct the rational or reasonable basis for any legislative act. At the hearings, Judge Bork insisted that his reasonable basis standard was somewhat how more strict than the reasonable basis test used by the Supreme Court in past cases. But he could not be specific about this, and I for one was not convinced. To me, Judge Bork's newly discovered reasonable basis test would provide less protection than the Supreme Court now offers, women, Hispanics, Native Americans, blacks,

and other minorities, and the poor. Thus, it's possible that if Judge Bork's confirmed and his views prevail on the court, the protections which we have long taken for granted, regarding personal and family privacy in the aspirations of women, racial minorities, and the poor, could be severely undercut. But the question remains, what is the probability that any such effect of any such effect? And the consequent public outcry and debate? In my view, the probability is strong. I've already noted that Judge Bork's testimonies specifically excluded the personal and family privacy cases from those so well-established as to preclude there being overruled. Judge Bork also testified that he would be a, quote, originalist judge, in quote. And we should remember that only nine months ago he said, quote, an originalist judge would have no problem in overturning a non-originalist precedent because that precedent, by the very basis

of his judicial philosophy, has no legitimacy. He did say at the hearing that a Supreme Court decision should be overruled if it were clearly wrong and capable of generating pernicious consequences. But those vague terms mean different things to different people. Mr. President, we owe the President of this country what's due him under the Constitution, that is, our advice on his nomination of Judge Bork. If the majority consents to the nomination, so be it. But if the majority will not confirm him, we need to ask the President to select another nominee for our prompt consideration. I have confidence that the President can select a nominee whose judicial philosophy matches his own, yet whose view of the Constitution will help to bind us together as a nation and not hinder our efforts to meet the challenges ahead of us. Mr. President, I yield the floor. Mr. President, Senators Times expired the Senator from Alabama. Mr. President, act.