Bork's views on affirmative action, privacy, other matters

Robert H. Bork's public pronouncements, speeches, and articles have raised as much controversy as his judicial rulings. Many of his views will be the focus of scrutiny from the Senate Judiciary Committee during the confirmation hearings that begin today. On affirmative action

``[US Supreme Court] Justice Powell's middle position - universities may not use raw racial quotas but may consider race, among other factors, in the interest of diversity among the student body - has been praised as a statesmanlike solution to an agonizing problem.

``It may be. Unfortunately, in constitutional terms, his argument is not ultimately persuasive....

``The argument offends both ideas of common justice and the 14th Amendment's guarantee of equal protection to persons, not classes.'' (From a 1978 article on the Wall Street Journal's Op-Ed page.) On capital punishment

``The death penalty is specifically referred to, and assumed to be an available penalty, in the Constitution itself, in the Fifth Amendment and in the 14th Amendment.

``It is a little hard to understand how a penalty that the framers explicitly assumed to be available, can somehow become unavailable because of the very Constitution the framers wrote....'' (From an interview in the November-December 1985 issue of Judicial Notice.) On privacy rights

``Griswold [v. Connecticut, 1965] struck down Connecticut's statutes making it a crime, even for married couples, to use contraceptive devices.

``If we take the principle of the decision to be a statement that government may not interfere with any acts done in private, we need not even ask about the principle's dubious origin for we know at once that the court will not apply it neutrally.

``The court, we may confidently predict, is not going to throw constitutional protection around heroin use or sexual acts with a consenting minor....

``Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution.

``It follows, of course, that broad areas of constitutional law ought to be reformulated.'' (From a 1971 article in the Indiana Law Journal.) On the role of the judiciary

``The judiciary have a right, indeed a duty, to require basic and unsettling changes, and to do so, despite any political clamor, when the Constitution, fairly interpreted, demands it.

``The trouble is that nobody believes the Constitution allows, much less demands, the decision in Roe v. Wade [a 1973 abortion-rights decision] or in dozens of other cases of recent years.

``Not even those most in sympathy with the results believe that....'' (From a 1981 Op-Ed article by Bork in The Christian Science Monitor.) On abortion:

``I am convinced, as I think almost all constitutional scholars are, that [1973 abortion rights decision] Roe v. Wade is an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.

``I also think that Roe v. Wade is by no means the only example of such unconstitutional behavior by the Supreme Court.'' (Congressional testimony, June 1, 1981.) On the separation of powers

``I think there is no reason to doubt that President Nixon had ample constitutional authority to order the attack upon the sanctuaries in Cambodia seized by North Vietnamese and Viet Cong forces.

``That authority arises both from the inherent powers of the presidency and from congressional authorization. The real question in this situation is whether Congress has the constitutional authority to limit the President's discretion with respect to this attack.

``Any detailed intervention by Congress in the conduct of the Vietnamese conflict constitutes a trespass upon powers the Constitution reposes exclusively in the President. (From Bork's remarks at a 1971 symposium.) On antitrust legislation

``In modern times the Supreme Court, without compulsion by statute, and certainly without adequate explanation, has inhibited or destroyed a broad spectrum of useful business structures and practices. Internal growth to large market size has been made dangerous. Growth by merger with rivals is practically impossible, as is growth by acquisition.... Unless the theory of antitrust is understood and the law brought into line with it, the law will surely move on again, becoming even more unnecessarily restrictive of business freedom.'' (From ``The Antitrust Paradox: A Policy at War with Itself,'' 1978). On homosexual rights

``If the revolution in sexual mores that appellant proclaims is in fact ever to arrive, we think it must arrive through the moral choices of the people and their elected representatives, not through the judicial ukase of this court.'' (From majority opinion in Dronenburg v. Zech, 1984). On media libel

``Those who step into areas of public dispute, who choose the pleasures and distractions of controversy, must be willing to bear criticism ... and even wounding assessments.'' (From a concurring majority opinion striking down a libel award in Ollman v. Evans, 1984.)

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