NOMINATION OF ROBERT H. BORK TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES MONDAY, SEPTEMBER 28, 1987 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The committee met, pursuant to notice, at 10:07 a.m., in room SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr. (chairman of the committee) presiding. Also present: Senators Thurmond, Kennedy, Heflin, Humphrey, Specter, Leahy, Hatch, DeConcini, and Simpson. The CHAIRMAN. The hearing will come to order. Our first panel this morning has two witnesses. First, Senator Thomas Eagleton, who distinguished himself in this body for many years representing the great State of Missouri; and I should add that the hallmark of Senator Eagleton's career in the Senate was his consideration of the separation of powers between the executive and legislative branches. And with recent events in the Persian Gulf, we should also recall that Senator Eagleton was one of the principal architects in the debate on the War Powers Act. Second, Professor Cass Sunstein, professor of law at the University of Chicago Law School. Gentlemen, would you stand to be sworn? Do you swear the testimony you are about to give will be the whole truth and nothing but the truth, so help you, God? Senator EAGLETON. I do. Mr. SUNSTEIN. I do. Senator THURMOND. Mr. Chairman, are you adhering to the 5minute rule today? The CHAIRMAN. We will adhere to the 5-minute rule today. Senator KENNEDY. Mr. Chairman, is that with regard to questions, or in terms of the presentations? The CHAIRMAN. What I would suggest is that that is with regard to questions and to panels. I will not, out of deference to a former colleague, keep him to 5 minutes; we will keep this to 10 minutes. So we will begin with Senator Eagleton. (2759) Wilkey, Malcolm R.: Page Letter to Chairman Biden and Senator Thurmond, September 24, 1987...... 6124 Letter to Senator Hatch, with attachments, September 21, 1987................... 2624 Winter, Judge Ralph K.: Affidavit, September 25, 1987 3225 Witness List 6501 Women's Bar Association of the State of New York: Statement of Committee to Review the Nomination of Judge Robert H. 6127 Women's Legal Defense Fund, with Federation of Women Lawyers, Judicial Statement, October 19, 1987. 4531 Yale Law School students: Record of opposition to Judge Bork's confirmation, September 11, 1987...... 6144 Young, Andrew: Prepared Statement.. 1071 Testimony 1067 NOMINATION OF ROBERT H. BORK TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES MONDAY, SEPTEMBER 28, 1987 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The committee met, pursuant to notice, at 10:07 a.m., in room SR-325, Russell Senate Office Building, Hon. Joseph R. Biden, Jr. (chairman of the committee) presiding. Also present: Senators Thurmond, Kennedy, Heflin, Humphrey, Specter, Leahy, Hatch, DeConcini, and Simpson. The CHAIRMAN. The hearing will come to order. Our first panel this morning has two witnesses. First, Senator Thomas Eagleton, who distinguished himself in this body for many years representing the great State of Missouri; and I should add that the hallmark of Senator Eagleton's career in the Senate was his consideration of the separation of powers between the executive and legislative branches. And with recent events in the Persian Gulf, we should also recall that Senator Eagleton was one of the principal architects in the debate on the War Powers Act. Second, Professor Cass Sunstein, professor of law at the University of Chicago Law School. Gentlemen, would you stand to be sworn? Do you swear the testimony you are about to give will be the whole truth and nothing but the truth, so help you, God? Senator EAGLETON. I do. Mr. SUNSTEIN. I do. Senator THURMOND. Mr. Chairman, are you adhering to the 5minute rule today? The CHAIRMAN. We will adhere to the 5-minute rule today. Senator KENNEDY. Mr. Chairman, is that with regard to questions, or in terms of the presentations? The CHAIRMAN. What I would suggest is that that is with regard to questions and to panels. I will not, out of deference to a former colleague, keep him to 5 minutes; we will keep this to 10 minutes. So we will begin with Senator Eagleton. (2759) TESTIMONY OF A PANEL CONSISTING OF: HON. THOMAS F. EAGLETON, AND CASS R. SUNSTEIN Senator EAGLETON. Thank you, Mr. Chairman. I appreciate your invitation to be here today, and I will try to do it within 5 minutes. There is one thing on which all of us in this hearing room can agree. In this 200th birthday year of the Constitution, this hearing on the confirmation of Judge Bork has been the best lesson in constitutional history that the country could receive. Part of that constitutional history tells us that during the period of the Articles of Confederation, the fledgling and stumbling not-soUnited States suffered mightily for the lack of a strong executive. The Founding Fathers corrected that and created a strong federal executive. And I am for a strong federal executive. But the Fathers also created a strong Congress and a strong system of federal courts. The Founding Fathers created a balanced government. Judge Bork remembers only the first of that three-part powersharing relationship. He remembers only the strong executive. And whenever there is a clash between the executive and the legislature, he decides in favor of an overwhelmingly powerful executive as it were, the second coming of George III. Let me illustrate. WAR POWERS Judge Bork has already declared his antipathy to the Act both as public policy and constitutional doctrine. Let us pass the policy question and spend a minute on the constitutional doctrine issue. Judge Bork, with all of his purported adherence to "original intent", forgets that the Founding Fathers deliberately decided that matters relating to war and the use of American military forces are shared powers, just as, I might add, the nomination and confirmation of Supreme Court Justices are shared powers between the President and the Congress. The Constitution gives Congress a grave responsibility in determining where and how American armed forces are to be deployed under threat of hostile action-for example, the Persian Gulf, and perhaps someday, God forbid, Nicaragua. Judge Bork says: No. It is all up to the President. I urge Judge Bork to read Article I, Section 8 of the Constitution, where the various foreign policy powers of the Congress are spelled out. Once again, Judge Bork's views are vintage George III, and the Founding Fathers wanted no more of vintage George III. FOREIGN INTELLIGENCE SURVEILLANCE ACT The same answer. Once more this is, to Judge Bork, purely, solely and exclusively the executive's function. Judge Bork believes that Congress has no role in intelligence matters; Congress ought to keep its nose out of it, and the courts, too, for that matter, because the courts are too stupid to figure it out anyway. See his Wall Street Journal article in 1978. Leave all of this up to the administration's aides; leave it up to Bill Casey's seasoned and cautious vision. (2760) |