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August 28, 1987 - Image 12

Resource type:
Text
Publication:
The Detroit Jewish News, 1987-08-28

Disclaimer: Computer generated plain text may have errors. Read more about this.

I OPINION 1

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12

FRIDAY, AUG. 28, 1987

(313) 338-7700

Bork

Continued from Page 7

EatIAL1INSING

OPPORTUNITY

the president over the ap-
pointment. The Senate is not
a rubber stamp. Automatic
ratification in the case of non-
controversial nominees may
be a tradition, but it is the
Constitution that governs
permanently. The tradition
and the Constitution do,
however, raise the question of
what does "qualified" mean?
The United States Supreme
Court is the most powerful
court in the world; it has the
power to declare acts of Con-
gress and the conduct of the
President as being
unconstitutional.
The persons selecting such
a powerful judge must be
scrupulously cautious. The
liberty, security, and longevi-
ty of every citizen.and the na-
tion is in the balance.
This being so, I submit the-
main criterion for confirma-
tion is judicial philosophy,
based on a demonstrated
record of comprehensive and
consistent upholding and ap-
plying of the Bill of Rights.
While the Senate should
not ask questions of Judge
Bork regarding his views on
specific cases, it can and
should ask questions about
his views on specific provi-
sions of the Constitution, par-
ticularly views on the
substance of the Bill of
Rights.
I believe with many that
Judge Bork's record on the
Bill of Rights does not merit
consent by the Senate. While
we know that some ap-
pointee's change some views
while on the court, Bork's
recorded views present a clear
and present danger to the
rights of little people opposed
by big power. Bork's judicial
philosophy promotes the con-
clusion that he is not now,
and most probably will not be,
a vigorous, dependable guar-
dian of the Bill of Rights. Let
us look at his record:
Church-State relations:
Bork's record suggests that
he favors state-directed wor-
ship in public schools and
public tax support for sec-
tarian schools. Bork has
described Chief Justice
William Rehnquist as a man
"guided not by his personal
philosophy but by a commit-
ment to the commands of the
Constitution." It was Justice
Rehnquist, we recall, who,
dissenting in a 1985 school
prayer case, said "The 'wall of
separation between church
and state' is a metaphor bas-
ed on bad history, a metaphor
which has proved useless as a
guide to judging. It should be
frankly and explicitly aban-
doned."
Americans cannot afford
the appointment of a justice
who could make Rehnquist's

misguided perspective the
majority opinion on the high
court. Along with Bork and
Rehnquist, Justices White,
O'Connor, and Scalia would
give opponents of strict
church-state separation a
solid 5-4 edge.
It is worth noting also that
Justice Brennan, the court's
strongest supporter of church-
state separation, is 81 years
old. Justices Blackmun and
Marshall, also supporters of
separation, will turn 80 next
year.
• Abortion rights: Bork has
called Roe v. Wade "an un-
constitutional decision, a

Judge Bork's
record on the Bill
of Rights does not
merit consent by
the United States
Senate or the
public.

serious and wholly un-
justifiable usurpation of state
legislative authority."
• One person-one vote: This
principle, Bork says, "runs
counter to the text of the
Fourteenth Amendment, the
history surrounding its adop-
tion and ratification, and the
political
practice
of
Americans from colonial
times up to the day the court
invented the new formula."
He has also opposed the
outlawing of the poll tax, and
said that forcing white
restaurants and hotels to
serve blacks was "unsurpass-
ed ugliness," a view he has
since recanted.
• Equal protection: Bork
has referred to the famous
clause in the Fourteenth
Amendment as the "Equal
Gratification" clause and
would strictly limit its ap-
plication. The law requires
that "government not
discriminate along racial
lines," Bork has said. "But
much more than that cannot
properly be read into the
clause." Equal protection for
women, or Hispanics, or gays,
or the handicapped would
therefore not apply.
• Exclusionary rule: He is
in favor of letting courts ad-
mit evidence that was illegal-
ly obtained by the police.
"The conscience of the court,"
he has said, "ought to be at
least equally shaken by the
idea of turning a criminal
.loose on society." Bork would
limit the idea that our Con-
stitution is as concerned with
the means as with the ends.
• Privacy: "The right of
privacy strikes without war-
ning," Bork said in a 1985 in-
terview. "It has no intellec-

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