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Robert Bork Has Died: R.I.P.

"It was a very small [poll] tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other…"

KENNEDY: Let me go to the issue of poll taxes. The right to vote is the cornerstone of a free society. For decades poll taxes were used to keep poor Americans, often of racial minorities, from exercising the franchise. In Harper v. Virginia Board of Elections, which was decided in 1966, the Supreme Court struck down the poll tax because it deprived poor Americans of equal protection of the laws by barring them from exercising their fundamental right to vote. In its majority opinion the court stated: "Wealth or fee paying has, in our view, no relation to voting qualifications. The right to vote is too precious, too fundamental to be so burdened or conditioned." Judge Bork, is it not true that in your confirmation hearings to be Solicitor General in 1973 you testified that you thought that Harper, and I quote, "as an equal protection case seemed to be wrongly decided"?

You were asked whether as far as the welfare of the nation was concerned the Harper case was correctly decided. Am I correct that you answered, "I do not really know about that. As I recall it was a very small poll tax. It was not discriminatory and I doubt it had much impact on the welfare of the nation one way or the other." And then you were asked about the constitutional issue, and you responded, "I think that is a question of degree. It depends on the size of the poll tax."

Do you remember? Is that accurate?

BORK: AS I recall it, Senator, yes.

KENNEDY: NOW, am I correct that in 1985, in your forward to The Constitution and Contemporary Theory, you again suggested the Supreme Court had been wrong to strike down the poll tax in the Harper case?

BORK: Sir, I am willing to discuss that case, fully, Senator.

KENNEDY: I am just wondering if you have changed your view that the Supreme Court was wrong in the Harper case to hold that poll taxes are unconstitutional?

BORK: I think it was, and I will tell you why, and I have no desire to bring poll taxes back into existence. I do not like them myself. But if that had been a poll tax applied in a discriminatory fashion, it would have clearly been unconstitutional. It was not. I mean, there was no showing in the case. It was just a $1.50 poll tax.

This Congress had just recently drafted and proposed to the States and had adopted an anti-poll tax amendment to the Constitution which this Congress carefully limited to federal elections so as to leave State poll taxes in place if States chose to have them. That seemed to me a little odd, therefore, that the Court would come along and mop up something that Congress did not bother to amend the Constitution to accomplish. Not did not bother; deliberately did not.

The poll tax was familiar in American history and nobody ever thought it was unconstitutional unless it was racially discriminatory.

Now, in Harper itself Justice Black--who was hardly a man who was insensitive to voting rights--Justice Harlan and Justice Stewart all dissented from the majority holding. Justice Black said the Court was using the old natural law due process formula to write into the Constitution notions of what it thinks is good government policy.

Harper overruled a prior case in which the majority had upheld the poll tax and in that case Justices Black, Frankfurter, Jackson and others upheld the poll tax. Archibald Cox has said, and I quote, "the opinion seems almost perversely to repudiate every conventional guide to legal judgment," although he liked the result. I like the result too. I just do not see the legal judgment there. Alexander Bickel made much the same criticism. It is a decision that is hard to square with out constitutional history.

KENNEDY: Well, it was not only on the basis of race. It was also on the question of discrimination against the poor. I remember very well, because I offered that amendment on the Voting Rights Act. I suppose the question is, how high a price should a poor person have to be able to pay to exercise the fundamental right to vote. You and I may not have to worry about where each dollar goes but there are a lot of Americans who do. To suggest that a poll tax, if it is small enough, does not deprive a poor person of a fundamental aspect of citizenship, well that reminds me of Anatole France's famous remark that "the law in its majestic equality forbids the rich as well as the poor to sleep under bridges and to beg in the streets and to steal bread."

The oath every judge and justice takes requires them to do equal right to the poor as well as to the rich. I just think we have to be sensitive to the realities, not just legal technicalities.

Let me go to one man, one vote. In years past, one of the great obstacles to real democratic representation in the country occurred when State legislatures apportioned themselves in ways that systematically reduced the voting strength of particular constituencies, drawing election districts with different size populations to enable some groups to maintain more of their share of power at the expense of others.

Judge Bork, in the Reynolds v. Sirns case back in 1964, the Supreme Court held that the Constitution requires election districts in States and localities to be apportioned in a way that meets the one man, one vote standard so that each legislative district contains roughly equal population.

Is it not true that in 1968 you wrote in Fortune Magazine, and I quote: "On no reputable theory of constitutional adjudication was there an excuse for the doctrine it imposed."

BORK: I think, Senator, I not only wrote that, I still think I was right, and I will discuss it with you. For one, we might start off by observing that the Senate of the United States would be an unconstitutional body if that rationale of one man, one vote were applied here.

KENNEDY: Well, that is entirely different, as you are too good a professor not to understand. There was a different requirement agreed to at the time the Constitution was adopted, and that was the New Jersey Plan and that was accepted by the Founding Fathers, and that is a different kind of situation and you know that as well.

BORK: That is entirely true. On the other hand, the reason for allowing certain units to have equal votes, even though their populations are not equal, applies as well in a State legislature or State senate as it does here. But passing that, it should be said that I agreed with Baker v. Carr, which was the case which first held--over the dissent of Justices Frankfurter and Harlan--which first held that the courts could get into reapportionment. It was a subject matter they could take up. I agreed with that because the legislature in that case was so malapportioned that a majority of the voters had no opportunity to get a new apportionment plan. Now, it should be said that my position was the position that Justice Stewart took in Lucas v. General Assembly in dissent. There you had a reapportionment plan with a State senate based on counties, I believe, which had been adopted by a referendum with a majority vote in every county in the State. Justice Stewart wrote, and I explicitly agree with it, that a State should be free to apportion as it sees fit, so long as the apportionment plan has rationality and so long as a majority has a way to change the apportionment whenever it wants to. That seems to be my point, and I must say it is a point that has been agreed to by a great number of law professors.

There is nothing in our constitutional history that suggests one man, one vote is the only proper way of apportioning. There is nothing in our political theory. Indeed, the executive veto, the committee system, districting, all of those things are really inconsistent with one man, one vote.

KENNEDY: Well, I must say that you have indicated that position that you have expressed here on many different occasions. You said in 1973 before the Congress one man, one vote "was too much of a straightjacket" and that you, quote, "did not think that there is a theoretical basis for it." And then you indicated on June 10th of this year, you said in an interview, "well, I think this Court stepped beyond its allowable boundaries when it imposed one man, one vote under the equal protection clause." I think the people of this country, Judge Bork, accept the fundamental principle of one man, one vote even though they are not burdened with a law school education.

BORK: Well, Senator, if the people of this country accept one man, one vote, that is fine. They can enact it any time they want to. I have no desire to go running around trying to overturn that decision. But as an original matter, it does not come out of anything in the Constitution and if the people of the country want it, they can adopt that apportionment any time they want to.

KENNEDY: Judge Bork, I do not think you have to be a law professor to know a little about simple justice. After hearing you just on these issues--we will get into others during the course of our hearing--the bottom line is clear: When it counted you opposed the key provisions of the Civil Rights Act banning race discrimination in employment, in public accommodation, and you did not publicly repudiate your opposition for some 10 years. You criticized the Supreme Court's decision banning the enforcement of racially restricted covenants. In a response to earlier questions you said you could not find a rationale about how you would be able to continue banning those

BORK: Senator, may I correct that? I said that decision stands. Nobody is going to overturn it, but it is fortunate the rationale upon which it was decided was not extended to other things because it would have made the courts the ultimate legislature on all private relationships in our society. I think a vast majority of professors who have examined that have agreed.

KENNEDY: I did not hear this afternoon the rationale about how those racially restricted covenants could be struck down.

BORK: I argued against racially restricted contracts in Runyon v. McCrary under Section 1981 and won the case. They can be struck down that way. Congress has struck them down, as I understand it, in the Fair Housing Law as well, which is fine, is good.

KENNEDY: But you disagreed with the Supreme Court decision striking down the poll tax which prevented poor people from exercising their fundamental right to vote; and you also opposed the Supreme Court decision upholding the one man, one vote principle which requires that every citizen's vote be counted equally. With all your ability, I just wish you had devoted even a little of your talent to advancing equal rights rather than criticizing so many of the decisions protecting rights and liberties. Lawyers can always make technical points, but a justice ought to be fair.

BORK: Senator Kennedy, I do not think your characterization of one man, one vote as a civil liberties case is correct. In fact, I think it is the opposite. But we can discuss that at greater length.

The CHAIRMAN: If you would like to go on, because the Senator has more time, also.

BORK: He has more time? I thought he was summing up.

The CHAIRMAN: I think he was. I am not suggesting he should go on, which he can, because his time is not up. My point is, anytime you feel you want to expand on an answer, you are not bound by the time, so you just go on any time you wish to expand on an answer. That is my point.

LEAHY: Mr. Chairman, I might note just on that last one, just as Judge Bork left it, I, for one would find it very helpful to hear an expansion on his last sentence.

BORK: On one man, one vote, Senator?

The CHAIRMAN: Whatever you were going to say. The whole point is, Judge, any time you want to say anything, just go ahead.

LEAHY: I wish you would. I understood you to say you did not see it as a civil liberties case but quite the opposite and I would just be interested to hear the explanation.

BORK: Well, for this reason Senator, let us talk about a State like Colorado, all of whose--not all of--the majority of whose citizens in every county want a State senate structured like the federal Senate. Why is it an advancement of civil liberties to say they cannot have it? I think it cuts into the liberties of the voters who want to have a senate structured in that way. But more fundamentally, you cannot apply the principle of one man, one vote across the board unless you think that we could do away with the committee systems, we could do away with the executive veto, we could do away with districting instead of at-large elections, and so forth and so on.

These points are all made with great precision in advance of the Court adopting the point in Dean Phil C. Neils article in the Supreme Court Review that came out just about a year before the Reynolds case, I guess, and was made at great length. Nobody doubts that an apportionment which is discriminatory can be struck down. Nobody doubts that an apportionment which a majority cannot change should be struck down. The only question is whether this rigid formula is good or not.

And let me tell you one other thing, Senator. For my sins I was approached by a three-judge district court in Connecticut and said they had just struck down the plan put in by the legislature and would I serve as a special master to redistrict Connecticut. I said, Judge Blumenfeld, I have just written that one man, one vote is a fiasco--and that was my word, I am afraid--but I will do it. I will follow the rules if you want me to do it that way, despite the fact that I have written that, and he said, yes.

So I then went out and got all of the census tracts and began to try to remake Connecticut. Well, I was not too well received up in Hartford because when I went into the legislatures they were terrified it was a Yale professor with a beard that they had never heard of before. I remember they looked at a map on the wall and said somewhat caustically, that is Connecticut, professor. And I said, for now. [Laughter.]

But I did it. I did it on a one man, one vote basis and within 1 percent deviation from district to district, which means you have got to cut town lines and carve communities up in the strangest ways. And I did it blind, just on the numbers without any understanding of the political impact and I first understood the political impact when I went up to testify at the hearing. I went to a restaurant without being told it was the Democratic parties hangout. I was sitting there eating when a man I did not know came up and said, that is a wonderful plan, professor; you are a good man; my name is John Bailey, Democratic national committeeman. He was chairman of the Democratic National Committee.

Well, the court accepted my plan and the Republicans appealed. But I know from that experience just how artificial one man, one vote leads you to be in cutting up communities and natural groups and so forth. A little more leeway in the apportionment rules, which--as a matter of fact in that case the Court came to allow more leeway so that it is not one man, one vote in state elections anymore. And I think that was a good relaxation….

KENNEDY: Just one final area. On the issue of sex discrimination, Judge Bork, as you know, the equal protection clause of the 14th amendment prohibits a state from denying any person within its jurisdiction the equal protection of the laws. You said this afternoon that your statement that the equal protection clause does not apply to women came in your Indiana Law Journal article.

BORK: DO you have a page citation there, Senator?

KENNEDY: Excuse me?

BORK: DO you have a page citation?

KENNEDY: Which? Of the Indiana Law Journal?

BORK: Yes.

KENNEDY: Page 17. I am glad to move along just in terms of the concept. I am not going to stop here. I want to get to the broader question in terms of the test, so I will go beyond the�-- am not looking for the quote here, just to mention that as the Indiana Journal.

BORK: I was just trying to find that statement.

KENNEDY: YOU had said that cases of racial discrimination aside, it is always a mistake for the Court to try and construct substantive individual rights under the due process clause--or the equal protection clause. If I could just go on, there is something else I am driving at. Is it not true that in an interview with United States Information Agency in June of this year, 10 years after the Court applied a rigorous standard test to sex discrimination, you said, and I quote, "I do think the equal protection clause probably should have been kept to things like race and ethnicity."

This is after the Supreme Court changed its basic test. It is clear from your public comments as recently as 3 months ago that you disapprove of the Supreme Court's recognition in the past 10 years that laws which discriminate on the basis of sex must be subject to heightened scrutiny under the 14th amendment. Because under the rational basis test, the Supreme Court upholds a classification if it is rationally related to any government interest. That is a very lenient standard used by the courts in judging routine economic regulations that treat different persons and businesses differently. That distinction was mentioned by the Chairman. In 1976, the Supreme Court rejected the rational basis test and applied a stricter standard for sex discrimination. And yet, in June of this year, you said that decision trivialized the Constitution. In this day and age men and women stand equal before the law. Women are first class citizens, Mr. Bork, and your views would take us back to the days when women were second-class citizens and the Supreme Court winked at discrimination and denied equal rights for women.

BORK: Well, let me talk about that, Senator. In looking at the 14th amendment, race is the paradigm case. Race is the core of the amendment. That is what the post-Civil War amendments were basically aimed at. They wanted to help and prevent discrimination against the newly freed slaves. And of course, race and ethnicity--that is the way the amendment was applied for a long time. It was applied to Chinese Americans in Yick Wo v. Hopkins. At least for the last 90 years, roughly, the Court has also been doing two things. It has been using a reasonable basis test, but it has also engaged in the activity you described, by saying this group is in under the 14th amendment, that group is out. Then they would develop multi-tier levels of scrutiny. That is, racial discrimination or distinction required strict scrutiny by the courts and a compelling governmental interest. Gender began to get intermediate scrutiny or something of that sort. I think that approach is highly artificial and not sufficient. I think you do not have to say this group is in, that group is out. You say that all persons are in, as the amendment does, and then you apply a reasonable basis test.

The reasonable basis test got a bad name because it simply is not applied with any degree of severity at all in the case of economic cases, and maybe it should not be. Maybe those are interest group politics cases. But if you look at--ask yourself whether a reasonable basis for distinction exists, the answer will be in a race case, almost never; in a gender case you will get something that resembles intermediate scrutiny, but you do not have to go through putting groups in and out and you do not have to have different tiers of scrutiny.

And indeed, I think Justice Stevens made a similar point, or maybe the same point, in a recent opinion of his. It gives women--women were not thought of as protected in particular when the 14th amendment was applied. There was a lot of what we now call discrimination against women which seemed to them a very natural way for civilization to be organized. But as the culture changes and as the position of women in society changes, those distinctions which seemed reasonable now seem outmoded stereotypes and they seem unreasonable and they get struck down. That is the way a reasonable basis test should be applied.

KENNEDY: Well, the point as I see it, Judge Bork, is that talking about the rational basis test, it was the test the Supreme Court used for a 100 years to deny equality for women. Some years ago the Court altered that to a rigorous standard for sex discrimination. As I understand the rational basis test, it is the same test which is used in terms of economic regulations and pollution ordinances. You have restated earlier in your response to Chairman Biden that this is still your test whereas the Court itself has moved to a much more rigorous standard to sex discrimination.

BORK: I do not think in the case of gender, Senator, that my test--or what you call my test, which is a test the Court has been applying in one way or another for 90 years--would come out that much different than an intermediate scrutiny standard.

KENNEDY: Well, it was still the test that was used when women were discriminated against back in 1896. That was the basis and I think you get a very substantial body of legal opinion, plus the Justices, that believe that the test has been altered and changed to a rigorous standard test and that does provide a great deal more protection to women.

What I hear you saying here now is that the test that was used about 90 years ago and which was the basis for discrimination against women is the standard that you would use. You might be able to elaborate on it, but that is, at least, what I am hearing.

BORK: I do not know that it was the basis for discrimination against women. I think that society saw all kinds of distinctions, legal distinctions between men and women as entirely reasonable and rational. This society no longer sees them that way, and that is fine.

KENNEDY: Well, I just will take 30 more seconds, Mr. Chairman. On numerous occasions over the last 16 years, Mr. Bork, you have suggested the equal protection clause of the Constitution does not ban discrimination against women. Now you are suggesting the Supreme Court should apply the same lax standard to sex discrimination cases that it applies to challenges to air pollution ordinances or economic regulations.

You have also disapproved the equal rights amendment, and finally you also suggested in a 1985 opinion that the Civil Rights Act offers little if any protection against any one of the ugliest forms of gender discrimination, individual sexual harassment on the job. We have made great progress in the country in the last 20 years in giving women equal status under law and I think the controversy has largely been settled. But you would have the Supreme Court, evidently, roll back the clock and reopen old wounds.

BORK: Senator, I think I must reply to that. I have never said anything about the ERA except that it seemed to me odd to put all of the decisions about how women may be treated--what they may do and what they may not do and so forth--into the hands of judges without any guidelines from a legislative history or anything else. Had the ERA said, Congress may make such laws as it sees fit to remove gender inequality, I would have no objection. My objection to ERA--which I never campaigned against, I just dropped a footnote someplace--was essentially the same as my objection which I have voiced to this administration's balanced budget amendment. In one case you put all the relationships between the sexes in the hands of judges where it should be in the hands of legislatures, except when it violates the Constitution. In the other case, you are going to put this government's finances in the hands of judges, or the budget in the hands of judges. It does not seem to me that judges are fit for either of those tasks without a lot more guidance than either amendment gives them.

KENNEDY: The point is, in a May 1974 Mayflower Hotel speech, you indicated that the fact that the adoption of ERA would ratify and forward a dangerous constitutional revolution is the one feature of it that is rarely if ever criticized.

BORK: That is right.

KENNEDY: I would ask that the full speech be put in the record.

BORK: The dangerous constitutional revolution was handing an entire important area of our life, of our culture, and our relationship between the sexes to nine justices. I think the Congress and the State legislatures should initially make those adjustments about whether women should go into combat, about whether we should have unisex toilets and all of this business you are going to leave to judges. That was my only objection to the unstructured grant of power to the judiciary.

The CHAIRMAN: Senator, your time is up.