AMONG THE MANY documents that will be considered by the Senate during the debate on Judge Robert Bork's nomination to the Supreme Court are the opinions he has written during the past five years on the U.S. Court of Appeals for the District of Columbia Circuit. There are 138 of them. In themselves they do not give a complete picture, since a judge's work product is determined by the kind of cases he is assigned. In addition, an appellate court judge is bound to follow precedents set by the Supreme Court even when he disagrees with them, so his own personal views may not come through. Still, amid the many dozens of cases that are of very little general interest -- and occasionally stunningly boring -- some consistent patterns are discernible, and a couple of cases are especially interesting. There is much more to be explored on the subject of Judge Bork, but today we take up some aspects of his Court of Appeals record.
It has been said that despite some sharp philosophical divisions on the Court of Appeals, Judge Bork is personally popular among his colleagues. He has also agreed with the more liberal members of the court on many occasions, usually in cases on appeal from federal agency rulings. He has generally been supportive of agency decisions, and in criminal cases he most often ruled in favor of the government. His opinions reflect his view that not every problem in the world should be resolved in court, and he has ruled often to dismiss suits for lack of standing. These views are most strongly reflected in quasi-political cases involving such questions as committee assignments in the House of Representatives and the U.S. role in El Salvador. He ruled that the federal courts were not the place to resolve these problems.
Two areas of judicial philosophy on which Judge Bork has written major opinions are of particular interest. The right of privacy is the principal underpinning of the Supreme Court ruling in Roe v. Wade, legalizing abortion. If there is no constitutionally guaranteed right of privacy, state legislatures would be free to prohibit abortion. In Dronenburg v. Zech, a 1984 case in which Judge Bork wrote the opinion, a discharged Navy petty officer challenged his dismissal for homosexual conduct on grounds that such activity was protected by a constitutional right to privacy. In ruling that this activity was not protected by the Constitution, Judge Bork wrote extensively on the right to privacy and added in a footnote the comment that in academic life he had "expressed the view that no court should create new constitutional rights" (like privacy) but conceded that these views are "completely irrelevant to the function of a circuit judge." The Senate will want to ask him how these views will be reflected if he becomes a Supreme Court justice with the power to overturn earlier rulings of the high court. His attitude toward overturning settled cases is one of the main subjects that needs exploring.
In another 1984 case, Ollman v. Evans, Judge Bork wrote a concurring opinion setting out his views on the First Amendment. In dismissing a libel action brought against the columnists Evans and Novak, he wrote a vigorous defense of a free press threatened by "a freshening stream of libel actions," which may "threaten the public and constitutional interest in free, and frequently rough, discussion." He also made these observations on the role of the courts in protecting rights that are clearly guaranteed in the Constitution: "There would be little need for judges . . . if the boundaries of every constitutional provision were self-evident. They are not. In a case like this, it is the task of the judge in this generation to discern how the Framers' values, defined in the context of the world they knew, apply to the world we know. . . . To say that such matters must be left to the legislature is to say that changes in circumstance must be permitted to render constitutional guarantees meaningless. . . . A judgewho refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full,fair and reasonable meaning, fails in his judicial duty."
This defense of flexibility is quite contrary to what has been widely described as Judge Bork's rigidity on questions of "original intent." What does it mean? That's another key question that should be put to Judge Bork by those senators -- surely there are some? -- who are not going into the inquiry with minds made up. How does Judge Bork see the role of judges who seek to apply the original intent ofthe Framers of the Constitution? Where does the Ollman decision fit into that?