From the opening statement of Sen. Edward M. Kennedy (D-Mass.):

. . . Time and again, in his public record over more than a quarter of a century, Robert Bork has shown that he is hostile to the rule of law and the role of the courts in protecting individual liberty. He has harshly opposed -- and is publicly itching to overrule -- many of the great decisions of the Supreme Court that seek to fulfill the promise of justice for all Americans . . . .

It is easy to conclude from the public record of Mr. Bork's published views that he believes women and blacks are second-class citizens under the Constitution. He even believes that in the relation to the executive, that members of Congress are second-class citizens. Yet, he is asking the Senate to confirm him . . . .

In Robert Bork's America, there is no room at the inn for blacks and no place in the Constitution for women; and, in our America, there should be no seat on the Supreme Court for Robert Bork . . . .

Rather than selecting a real judicial conservative to fill Justice {Lewis F.} Powell's vacancy, the president has sought to appoint an activist of the right, whose agenda would turn us back to the battles of a bitterly divided America, reopening issues long thought to be settled and wounds long thought to be healed . . . .

From the opening statement of Judge Robert H. Bork:

. . . The judge's authority derives entirely from the fact that he is applying the law and not his own personal values. That is why the American public accepts the decisions of its courts . . . even decisions that nullify laws a majority of the electorate or of their representatives voted for . . . .

How should a judge go about finding the law? . . . . The intentions of the lawmakers govern, whether the lawmakers are the Congress . . . enacting a statute or those who ratified our Constitution and its various amendments.

Where the words are precise and the facts simple, that is a relatively easy task. Where the words are general, as . . . with some of the most profound protections of our liberties . . . the task is far more complex . . . to find the principle or value that was intended to be protected and see that it is protected. As I wrote in an opinion, the judge's responsibility "is to discern how the framers' values, defined in the context of the world they knew, apply in the world we know."

If a judge abandons intentions as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate authority . . . .

That is why I agree with Judge Learned Hand, one of the great jurists in our history. He wrote that the judge's "authority and his immunity depend upon the assumption that he speaks with the mouth of others . . . . " To state that another way, the judge must speak with the authority of the past and yet accommodate that past to the present.

The past, however, includes not only the intentions of those who first made the law, it also includes those past judges who interpreted and applied it in prior cases. That is why a judge must give great respect to precedent. It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought.

Times come, of course, when even a venerable precedent can and should be overruled. The primary example of a proper overruling is Brown v. Board of Education . . . which outlawed racial segregation accomplished by government action. Brown overturned the rule of separate-but-equal laid down 58 years before in Plessy v. Ferguson. Yet Brown, delivered with the authority of a unanimous court, was clearly correct and represents perhaps the greatest moral achievement of our constitutional law . . . .

That does not mean that constitutional law is static. It will evolve as judges modify doctrine to meet new circumstances and new technologies . . . .

I can put the matter no better than I did in an opinion on my present court. Speaking of the judge's duty, I said:

"The important thing, the ultimate consideration, is the constitutional freedom . . . given into our keeping. A judge who 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 . . . to ensure that the powers and freedoms the framers specified are made effective in today's circumstances."

But . . . when a judge goes beyond this and reads entirely new values into the Constitution . . . he deprives the people of their liberty . . . to set their own social agenda through the processes of democracy . . . .

My philosophy of judging is neither liberal nor conservative. It is simply a philosophy of judging which gives the Constitution a full and fair interpretation but, where the Constitution is silent, leaves the policy struggles to Congress, the president, the legislatures and executives of the 50 states and to the American people . . . .

I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases with this committee. I cannot, of course, commit myself as to how I might vote on any particular case, and I know you would not wish me to do that . . . .

From the exchange between Kennedy and Bork:I believe that in your world, the individuals have precious few rights to protect them against the majority, and I think this is . . . what the Bill of Rights is all about, that there are some things in America where no majority can do to the minority or to the individuals . . . .

. . . I have the greatest respect for the Bill of Rights, and I will enforce the Bill of Rights. I have enforced the Bill of Rights. What we were talking about here was a generalized, undefined right of privacy, which . . . is not in the Bill of Rights . . . .

. . . I appreciate your support for the school segregation decision in 1954. But I am troubled, because I believe that your clock on civil rights seems to have stopped in 1954 . . . . When did you first publicly change your position on the Civil Rights Act?

One has also to know that as solicitor general, I enforced the rights of racial minorities in court, often further than the Supreme Court was willing to go . . . . On my present court, I have frequently voted for black plaintiffs in . . . civil rights or voting rights cases . . . .

At a time when men and women in the South and North, Republicans and Democrats, recognized that race discrimination had to be outlawed . . . you strongly and publicly opposed civil rights legislation, calling its underlying principle one of "unsurpassed ugliness," and it wasn't until 10 years later, when you were nominated to be solicitor general, that you publicly repudiated those

views . . . .

I don't usually keep issuing my new opinions every time I change my mind . . . . I don't keep issuing loose-leaf services about my latest state of mind . . . .

I'm just wondering if you've changed your view that the Supreme Court was wrong . . . to hold that poll taxes are unconstitutional?

I think it was . . . . I have no desire to bring poll taxes back into existence . . . . But if that had been a poll tax applied in a discriminatory fashion, it would have clearly been unconstitutional. It was not . . . .

You indicated June 10 of this year . . . "I think this court stepped beyond its allowable boundaries when it imposed one-man, one-vote under the equal-protection clause" . . . . The people of this country accept the fundamental principle . . . even though they are not burdened with a law school education. . . . They can enact it anytime they want to. I have no desire to go running around trying to overturn that decision. But as an original matter, it doesn't come out of anything in the Constitution . . . .