Senator HUMPHREY. I have wondered that, too, as we have sat here hour after hour. Mr. MONAGHAN. Well, it is very disturbing, if that is the case. I do think it is fair to say that the function of this committee, at least as it is outlined in the text of the Constitution and in the Federalist Papers is not to take over the President's judgment on this issue, it is to play the role of a checking function. Judge Bork's ideology is relevant. If the committee thinks that Judge Bork is outside the mainstream, it ought to reject him. I think everybody is agreed on that, or should be agreed on that framework. Senator HUMPHREY. Yes. Well, I would just close with this observation. That if you look at the weight and the expenditures of money by various special interest groups, they are almost all in opposition to the nomination. And, if Judge Bork is denied confirmation on that basis, then I think I will offer legislation-I suppose it would take a constitutional amendment, but in any case, I think we would be well advised to change the name of the institution from the Supreme Court to the Court of Special Interests. I yield back whatever time I have. The CHAIRMAN. Senator Thurmond. Senator THURMOND. Thank you very much. I want to express my appreciation to you fine people for coming here today and testifying. I know some of you had to sacrifice to do that. Now you have heard all throughout these hearings all kinds of questions and issues and going into detail and taking a lot of time. I am not going to take any time. I want to ask you one question, because it all boils down to this. What is your conclusion about this man Judge Bork? Is he qualified to sit on the Supreme Court? Does he have the temperament, and does he have the integrity, and does he have the competency to be on there? Does he have the courage and the dedication to make a good Supreme Court Justice? I am going to call each one of your names, and if you will either answer yes or no I will appreciate it. Professor Bator. Mr. BATOR. Yes, sir. Senator THURMOND. Professor Monaghan. Mr. MONAGHAN. Yes, sir. Senator THURMOND. Professor BeVier. MS. BEVIER. Yes, sir. Senator THURMOND. Professor Levin. Mr. LEVIN. Yes, Senator. Senator THURMOND. Professor Oaks. Mr. OAKS. Yes, sir. Senator THURMOND. Thank you very much. That is all I want to know, and that is all the American people want to know. Senator DECONCINI. Mr. Chairman. The CHAIRMAN. The Senator from Arizona. Senator DECONCINI. Would the Senator yield for a question to Mr. Monaghan? I just want to be sure in answering Senator Humphrey's questions-question, or at least his statement there, do you see, in observing the process we have gone through here-and this is for my benefit-do you see anything that we have done as a committee that is improper either in questioning, or the witnesses or in the conduct of the committee on either side by anybody, and certainly including myself? I am asking that from the standpoint that, you know, if Judge Bork is confirmed, it seems to me this has been a very useful process and one that is legitimate. If he is not confirmed, I feel the same way, notwithstanding some very strong feelings about one interest group versus another, as far as this committee. Would you care to comment? Mr. MONAGHAN. Absolutely not. I have not heard from any side a single criticism of the manner in which this hearing has been conducted. I think that everybody understands that every effort has been made to conduct it fairly. There is a question-the question doesn't go to the manner in which the committee has operated. The question goes to the process as it is set up. One of the question is whether or not in the end this is going to prove to be a simply atypical situation in which people who, by and large, want to make their wishes known, but, by and large, operate as interest groups. I mean, the structure of a great many panels that came before this committee is, I like this decision, Judge Bork doesn't like this decision, Judge Bork should not be confirmed. I think that testimony is irrelevant myself. Senator DECONCINI. Well, you say it is irrelevant. Should we not have heard it? Mr. MONAGHAN. No. You must hear it. You must hear it, I agree with that. And then one wonders about the process. I think it is going to take some time to know what to make of this, but in terms of the conduct of the Senators who conducted the committee, I would Senator DECONCINI. Because I just was kind of―― Mr. MONAGHAN. Yes. It just looks like it is almost out of control. That is all. Senator DECONCINI. Well, from the academic point of view and blending that in with our political process, it seems to me like if Judge Bork is approved by this committee and confirmed by the Senate, people who support him and always have, they are going to say, hey, the process is okay. It came out okay. Mr. MONAGHAN. I don't think that is true. Senator DECONCINI. You don't think so. Mr. MONAGHAN. Well, I am not sure Senator DECONCINI. And, if he is disapproved, those who oppose him-because the Senator from New Hampshire says that all the moneys being spent by those who oppose him. I don't know. The mail I am getting is almost equally divided, and it is an organized effort, indeed by special interests from both proponents and opponents. I have never seen anything like it I guess since I have been here. And you can tell it has cost some money to print the cards and letters and to make the effort and to make the phone calls and to put it on the 700 Club and to put it on the NAACP writing list, and Common Cause, or whoever it is. It is just a real effort to bring this message of what they feel is there, and, of course, that is the proc ess. I don't object to it as long as it is within bounds of not being obnoxious. Mr. MONAGHAN. Well, maybe the way to conclude is to say this. This is an unsettling experience and one may say, probably, of this process what Churchill said of democracy-"It is the worst form of government except for every other one." I don't know. Senator DECONCINI. Yes. Thank you. Thank you, Mr. Chairman. The CHAIRMAN. It is the only one we have. Thanks for coming. While we are bringing the next panel up, the committee has received today telegrams from two professors that relate to one of the essays submitted to us by former Secretary Carla Hills. Both professors object to the description of their views in the essay written by Professor Mary Ann Glendon. The first telegram is from Professor Lucinda Finley, of Yale Law School, and her telegram reads as follows: I would like to respond to the gross mischaracterization and oversimplification of my views on sex equality contained in the written remarks of Professor Mary Ann Glendon delivered to the Senate Judiciary Committee by Carla Hills. It is I, and not Judge Bork, who in my writings has argued for a nuanced and differentiated approach to equality. I have written that our concept of legal equality must be enhanced to include the needs and experiences of women, rather than the predominantly male standard that has traditionally been applied in his judicial opinions on sexual harassment in the American Cyanamid case. Judge Bork has displayed startling insensitivity to the needs and realities facing working women. Far from advocating the nuanced approach to equality that would protect women, Judge Bork has continually questioned whether women should even be protected by the equal protection clause of the Constitution. In this regard he would be far worse for women than any recent members of the Supreme Court. While I do not always agree with the approach of all Justices, the Court has developed a consensus in favor of sex equality that Judge Bork does not support and has frequently criticized. I strongly oppose his nomination. Thank you for considering my views and allowing the opportunity to correct the record. Sincerely, Lucinda M. Finley, Associate Professor of Law at Yale. And the second one is from Carol Gilligan, Professor, Harvard University Graduate School of Education. Carla Hills in her testimony to your Committee cited a paper by Professor Mary Ann Glendon. Professor Glendon's paper erroneously implies that I would support the nomination of Judge Robert Bork and states that his judicial philosophy exemplifies what I have called a different voice. In fact, Judge Bork represents precisely the kind of rigid, dogmatic, abstract and impersonal judicial philosophy that calls for a different voice. His opinions and writings rule out of court many voices which the American judicial system must be responsive to if protections afforded by the Constitution are to be extended to all citi zens. I strongly urge a vote against his confirmation. Carol Gilligan, Professor, Harvard University Graduate School of Education. [Telegrams follow:] 5241 (R 7/82) LM FINLEY 227 HIGHLAND ST NEW HAVEN CT 06511 24AM Western Mailgram ATES PUSIŲ 4-0321348267 09/24/87 ICS IPMMTZZ CSA NH38 2034324929 MQMS TDMT NEW HAVEN CT 237 09-24 0428P EST SENATOR JOSEPH BIDEN I WOULD LIKE TO RESPOND TO THE GROWTH MISCHARACTERIZATION AND OVER SINCERELY YOURS, LUCINDA M FINLEY ASSOCIATE PROFESSOR OF LAW YALE LAW SCHOOL 227 HIGHLAND ST NEW HAVEN CT 06511 16126 EST MGMCOMP TO REPLY BY MAILGRAM MESSAGE, SEE REVERSE SIDE FOR WESTERN UNION'S TOLL FREE PHONE NUMBERS CARLA HILLS IN HER TESTIMONY TO YOUR COMMITTEE CITED A PAPER BY CAROL GILLIGAN, PROFESSOR HARVARD UNIVERSITY GRADUATE SCHOOL OF EDUCATION |