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GOVERNMENT

Storage

Amming,

NOMINATIONS OF JOSEPH T. SNEED TO BE

DEPUTY ATTORNEY GENERAL AND

ROBERT H. BORK TO BE SOLICITOR GENERAL

HEARINGS

BEFORE 'THE

0 C E NTS

NOV 1973

E-i i-R

STATE UNIVERCITst

IMITTEE ON THE JUDICIARY

UNITED STATES SENATE

NINETY-THIRD CONGRESS

Futu SESSION

ON

NOMINATIONS OF JOSEPH T. SNEED, OF NORTH CAROLINA, TO BE DEPUTY ATTORNEY GENERAL AND ROBERT H.

BORK, OF CONNECTICUT, TO BE SOLICITOR GENERAL

JANUARY 17, 1973

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

22-446 WASHINGTON : 1973
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COMMITTEE ON THE JUDICIARY

JAMES 0. EASTLAND, Mississippi, Chairman

JOHN L. McCLELLAN, Arkansas

SAM J. ERVIN, JR., North Carolina

PHILIP A. HART, Michigan

EDWARD M. KENNEDY, Massachusetts

BIRCH BAYH, Indiana

QUENTIN N. BURDICK, North Dakota

ROBERT C. BYRD, West Virginia

JOHN V. TUNNEY, California

ROMAN L. HRUSKA, Nebraska

HIRAM L. FONG, Hawaii

HUGH SCOTT, Pennsylvania

STROM THURMOND, South Carolina

MARLOW W. COOK, Kentucky

CHARLES McC. MATHIAS, JR., Maryland

EDWARD J. GURNEY, Florida
CONTENTS

WEDNESDAY, JANUARY 17, 1973

Page

Prepared statement of Sam J. Ervin, Jr., U.S. Senator from North

Carolina 2

Testimony of:

Jesse Helms, U.S. Senator from North Carolina_ 1

Joseph T. Sneed, of North Carolina, nominee to be Deputy Attorney

General 3

Lowell P. Weicker, U.S. Senator from Connecticut 5

Robert H. Bork, of Connecticut, nominee to be Solicitor General__ 5

Communications from:

Charles D. Ablard, Associate Deputy Attorney General 16

Clarence Mitchell, director, Washington Bureau, National Association for the Advancement of Colored People 26

(III)

NOMINATIONS OF JOSEPH T. SNEED TO BE DEPUTY

ATTORNEY GENERAL AND ROBERT H. BORK TO BE

SOLICITOR GENERAL

WEDNESDAY, JANUARY 17, 1973

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

TVa8hington, D.0 .

The committee met, pursuant to notice, at 10:35 a.m., in room 2228,

Dirksen Senate Office Building, Senator James 0. Eastland (chairman) presiding.

Present: Senators Eastland, McClellan, Hart, Burdick, Tunney,

Hruska, Fong, Thurmond, and Mathias.

Also present: John H. Holloman, Francis C. Rosenberger, and

Thomas D. Hart, of the committee staff.

The CHAIRMAN. This hearing is on the nomination of Joseph T.

Sneed of North Carolina to be Deputy Attorney General.

Senator Helms, you may proceed.

STATEMENT OF JESSE HELMS, U.S. SENATOR FROM NORTH

CAROLINA

Senator HELMS. Mr. Chairman and other distinguished Senators, I

am Jesse Helms of North Carolina and I thank you for the privilege

of appearing before this committee this morning for the purpose of

presenting to you a highly respected resident of North Carolina who

has been nominated by the President to be Deputy Attorney General.

I met Mr. Joseph T. Sneed III, for the first time last week. Subsequent to our meeting, Mr. Chairman, I made inquiry of several sources

as to his background and competence. Without exception, he was given

splendid recommendations by those who have known him and worked

with him.

Briefly, Mr. Sneed has been professor of law and dean of the Duke

University Law School since February 1971. Before coming to Duke

University, he had built an outstanding academic career at a number

of excellent law schools in Texas, New York, Massachusetts, and

California.

Mr. Sneed was born in Calvert, Tex., on July 21, 1920. After undergraduate work at Southwestern University, he 'attended the law school

at the University of Texas, which awarded him a.law degree in 1947.

His legal education, I should mention, was interrupted by service during the Second World War as a staff sergeant in the U.S. Army Air

Force.

For 10 years after graduation, he remained at the University of

Texas Law School, first as an instructor, then as assistant professor,

(1)
2

then as associate professor, and finally as a professor of law. In addition, during the years 1949-50, he served as assistant dean in 1952

he was a consultant to the Texas Legislative Council, and from 1959

to 1956 he was counsel to the firm of Graves, Daughtery and Greenhill

in Austin, Tex.

In 1957, Mr. Sneed left the University of Texas to join the law

faculty at Cornell University in Ithaca. N.Y.

'

as a professor of law,

Harvard University awarded him an S.J.D. degree in 1958. Thereafter, he remained at Cornell until 1962, when he moved to Stanford

University Law School as a professor of law. While at Stanford, Mr,

Sneed served as president of the American Association of Law SchoolF,

in 1968, and as a member of the California Law Revision Commission

in 1970. He received an LL.D. degree from Southwestern University

in 1968.

In addition to numerous articles, Mr. Sneed is the author of "Configurations of Gross Income" published in 1967. He is a member of the

bar of Texas and of New York, Order of the Coif, the American Law

Institute, the American Judicature Society and the American Bar

Association. He is a widely recognized expert in the field of taxation.

He is married to the former Madelon Juergens and they have three

children.

My inquiries have convinced me that Mr. Sneed comes to the job

of Deputy Attorney General with an outstanding academic background. I commend him to this committee as unusually well qualified

for the position.

Thank you, Mr. Chairman.

The CHAIRMAN. I want to place in the record a statement from

Senator Ervin in support of the nomination of Mr. Sneed to be

Deputy Attorney General.

[The statement referred to follows:]

STATEMENT OF SENATOR SAM J. ERVIN, JR. IN SUPPORT OF THE NOMINATION OF

JOSEPH T. SNEED, III TO BE DEPUTY ATTORNEY GENERAL OF THE UNITED STATES

Mr. CHAIRMAN. I sincerely regret that a previous commitment prevents me

from personally expressing to the Committee my support for the nomination of

Joseph T. Sneed, III, as Deputy Attorney General of the United States.

Mr. Sneed is presently serving as Dean of the Duke University School of Law

in Durham, North Carolina. North Carolinians take great pride in the outstanding

national reputation of the Duke Law School and its tradition of academic excellence. Joseph Sneed has contributed to that tradition during his tenure on the

Duke faculty and has won the respect and admiration of his colleagues there.

Mr. Sneed's academic and professional qualifications for Deputy Attorney

General are impressive. He received his LL.B. degree from the University of

Texas, an S.J.D. degree from Harvard University, and an LL.D. degree from

Southwestern University. After receiving his LL.B. from the University of Texas

In 1947, he served until 1957 as a member of its law school faculty. While in

Austin, Texas, he was associated with the law firm of Graves, Daugherty, and

Greenhill. From 1957 to 1962, Mr. Sneed was Professor of Law at the Cornell

University Law School, in Ithaca, New York. Thereafter, he joined the law

faculty at Stanford University where he served until coming to Duke University

in 1971.

I am confident that, based upon Mr. Sneed's excellent professional background

and reputation and his outstanding academic achievements, Joseph Sneed will

render distinguished service to our country as the new Deputy Attorney General.

Certainly, the country at this time has great need for a man of his abilities in

this important position.
3

I urge the Committee to approve Mr. Sneed's nomination. Certain of his confirmation, may I add that I am personally looking forward to working with Mr.

Sneed on matters of mutual interest in the years ahead.

The CHAIRMAN. Mr. Sneed, is your biography before you correct?

TESTIMONY OF JOSEPH T. SNEED, NOMINEE TO BE DEPUTY

ATTORNEY GENERAL

Mr. SNEED. Yes, sir; Senator Eastland, it is substantially correct.

The CHAIRMAN. It will be placed in the record.

[The biographical sketch of Mr. Sneed follows:]

JOSEPH T. SNEED, III

Born: July 21,1920, Calvert, Texas.

Marital status: Married ( wife, Madelon) , three children.

Legal residence: North Carolina.

Education: 1937-1941, Southwestern University, Texas, B.B.A. degree. 1941-47,

University of Texas, Austin, Texas; LL.B. degree. 1958, Harvard University,

S.J.D. degree. 1968, Southwestern University, LL.D. degree.

Bar: 1948-1958, Texas; New York.

Military service: November, 1942-February 1946, U.S. Army Air Force, S/Sgt.

Employment: 1947-57, University of Texas, Instructor. 1947-51, Assistant Professor of law. 1951-54, Associate Professor of law. 1954-57, Professor of law.

1949-50, Assistant Dean. 1954-56, Graves, Daugherty & Greenhill, Austin, Texas,

Counsel. 1957-62, Cornell University, Ithaca, New York, Professor of law. 1962-

71, Stanford University Law School, Stanford, California, Professor of law.

February 1971-present, Duke University Law School, North Carolina, Dean and

Professor of law.

Office: Duke University Law School, Durham, North Carolina.

Home: 2815 Chelsea Circle, Durham, North Carolina.

The CHAIRMAN. Senator McClellan?

Senator MCCLELLAN. I have no questions.

The CHAIRMAN. Senator Hart?

Senator HART. I had an opportunity to visit with Dean Sneed yesterday. I did not ask him then and I am going to ask him now if he

had anything to do with the development of any school desegregation

plans in North Carolina?

Mr. SNEED. No, sir; Senator Hart. I have been in the State only 2

years and I have not participated in any way. My duties as a dean

have been all consuming

Senator HART. Thank you, Mr. Chairman.

The CHAIRMAN. Senator Burdick?

Senator BURDICK. I have no questions, Mr. Chairman.

The CHAIRMAN. Senator Tunney ?

Senator TUNNEY. Thank you, Mr. Chairman.

I had the opportunity, because Dean Sneed has spent so much time

in California teaching at Stanford University, to talk to many eminent attorney in California who know him and they all have praised

the dean for his integrity and his brilliance. They are universal in

their opinion that he would be a very fine Deputy Attorney General. I

am pleased to join with my colleagues in saying I am most happy to

support the nomination.

Mr. SNEED. Thank you, Senator Tunney.

The CHAIRMAN. Senator Hruska ?
4

Senator HRUSKA. Mr. Chairman, it was with interest that I canvassed the records of both of these nominees. They have both compiled

a very significant record in their field of the law.

I do know that one of the products of Mr. Sneed's teaching is on my

staff and if Mr. Sneed will do as good a job and as fruitful a job in his

new assignment as he did with Malcolm Hawks in teaching him the

law, then I forecast a very, very fine future for him.

SNEED. Thank you, Senator. I had very good material.

Senator HRTJSKA. Mr. Sneed, have you been in the office there these

recent clays being briefed and being oriented a little bit?

Mr. SNEED. To some necessary degree, yes, sir. I have been commuting between Durham and Washington. 

Senator HRUSKA. Did you have occasion to inquire about the progress being made on the Department of Justice's proposal to revise the

Federal Criminal Code'?

Mr. SNEED. Only in a general sense

'

Senator Hruska. I do know that

the Criminal Division is working on the project. The Office of Criminal Justice is also involved and there is every intention on the part of

the Department to go forward with whatever suggestion it cares to

make at the appropriate time.

Senator HRUSKA. It will be with interest that we will follow up on

that. We have done a lot of work on it, and we expect to get it to a

point of action sometime this calendar year.

Mr. SNEED. I am aware of that and will do everything in my power

to assist.

Senator HRUSKA. I have no further questions, Mr. Chairman.

The CHAIRMAN. Senator Fong?

Senator FONG. Mr. Chairman, I have no questions. I should like to

congratulate Mr. Sneed and Mr. Bork on their nominations. Although

I am a Harvard man, I am never the less very happy to see a Yale man

succeed a Harvard man as Solicitor General.

The CHAIRMAN. Senator Thurmond?

Senator THURMOND. Thank you, Mr. Chairman.

Dean Sneed, I want to congratulate you upon your appointment.

Mr. SNEED. Thank you sir.

Senator THURMOND. 

you,

that you will be a great asset to the Justice Department in the performance of its work.

Looking over your record you appear well qualified. You have been

a soldier, you have been a distinguished teacher of law, you have practiced law, you seem to meet all of the qualifications. If I did not know

you, however, and had any questions, from the high esteem in which

I hold the able and distinguished Senator from North Carolina, Senator Helm I would cast my vote for you on his recommendation. It

will be a pleasure for me to support you.

Mr. SNEED. Thank you, Senator Thurmond.

The CHAIRMAN. Senator Mathias?

Senator MATHIAS. Thank you, Mr. Chairman. I would just like to

welcome Mr. Sneed to the committee, and to express my admiration

for his record, and to wish him well in the performance of his duties.

Mr. SNEED. Thank you, Senator Mathias.

The CHAIRMAN. Does anybody else have any questions?

Senator HART. Mr. Chairman, I am advised that the Senator from
5

Massachusetts, Mr. Kennedy, does have questions he would like to

address to Dean Sneed and will be here very shortly. I am sure that

before we have finished with Professor Bork, Senator Kennedy will be

here.

The CHAIRMAN. We will now take up the nomination of Robert H.

Bork of Connecticut to be Solicitor General of the United States, vice

Erwin N. Griswold.

Senator Weicker of Connecticut is recognized.

STATEMENT OF LOWELL P. WEICKER, U.S. SENATOR FROM

CONNECTICUT

Senator WEICKER. Thank you very much, Mr. Chairman. I appreciate your courtesy and the privilege of appearing before your

committee.

Mr. Chairman, it gives me a great deal of pleasure to present to your

committee Prof. Robert Bork, who has been nominated by the President for the position of Solicitor General of the United States. Professor Bork has a very rich background both in the practice of law and

in the academic field relating to the law and is at present professor at

the Yale Law School in New Haven.

Very briefly, he served with distinction in our Armed Forces, in the

U.S. Marine Corps, and then went into private practice of law in

Chicago, which practice involved some 7 to 8 years of his life, and then

on to the Yale Law School where he is at present an associate professor.

I think it is a mark of the esteem in which he is held by members of

the judiciary that three Federal judges selected Professor Bork to

devise a reapportionment plan for the State of Connecticut. I have

had 'occasion to sit down and chat at length with the nominee. I find

him to be a man of great integrity, certainly of academic brilliance,

and of a deep commitment to the high principles that guide this

Nation, and I think he will make a superb Solicitor General, and indeed am very proud that he comes from my State of Connecticut.

The CHAIRMAN. Thank you, sir.

Professor, is your biography before you correct?

TESTIMONY OF ROBERT H. BORK, NOMINEE TO BE SOLICITOR

GENERAL OF THE UNITED STATES

Mr. BORK. Yes, it is, Senator.

The CHAIRMAN. It will be placed in the record.

[The biographical sketch of Mr. Bork follows:]

ROBERT H. BORK

Born: March 1,1927, Pittsburgh, Pa.

Marital status: Married (wife, Claire) , three children.

Legal residence: Connecticut.

Education: 1944 45, University of Pittsburgh, Pa. 1947-53, University of Chicago. 1948, B.A. Degree. 1953, J.D. Degree.

Bar: 1953, Illnois.

Military service: 1945-46 and 1950-52, active duty, U.S. Marine Corps Reserve,

1st Lt., inactive status until December, 1958 when discharged as captain.

Employment: 1953-54, University of Chicago, Research Associate, Law and

22-446-73 2
6

Economics Project. 1954-55, Private practice, Willkie, Owen, Farr, Gallagher &

Walton, New York, New York. 1955-62, Kirkland, Ellis, Hodson, Chaffetz and

Masters, (now Kirkland & Ellis) Chicago, Illinois, Associate and Member. 1962-

present, Yale University Law School, New Haven, Conn., Associate Professor of

law, 1965, Professor of law.

Office: Yale University, New Haven, Conn.

Home: 142 Huntington St., New Haven, Conn.

Senator HART. Professor Bork, as with the dean, we had a visit yesterday afternoon. I certainly want to compliment you on the impressive academic career which has been yours and, as I indicated yesterday, there are some questions I would like to ask you.

The first bears on something I was not aware of, although I should

have been, when you were visiting yesterday. As I now understand it,

we are being asked to confirm you now when there is no vacancy for

the position.

It is my understanding that Dean Griswold, the present Solicitor

General, has announced no plans to resign and indeed indicates that

he will be on the job through the end of the court term in June.

I remember Senator Thurmond several years ago expressing some

concern about the practice of confirming people before there was a,

vacancy. At that time there was a possibility that we might be changing administration but there is not that possibility in this case. Now,

what would be your status between now and the end of June if we

advise and consent to this nomination?

Mr. BORK. What I had intended to do and what I have worked out,

Senator, with Dean Griswold is that I will come down very frequently,

because there are large problems of transition in that office. During

the spring Dean Griswold will be handling cases of course, which he

has helped develop and prepare but, in addition ID that, cases will be

coming in that are really cases that will affect the next term of the

court, Dean Griswold has very kindly offered to educate me in the

operations of that office and to talk with me about the problems in

cases coming up for the next term. So there is a transition period, and

a period of education of me by the Dean.

Senator HART. I certainly can understand why it would be desirable

to familiarize yourself, with the work, but could not that be done on

a consultative basis? Why should we advise and consent to your nomination as the Solicitor General when there is the Solicitor General

named Griswold? How do you work with two Solicitors General?

Mr. BORK. Senator, I would not be the Solicitor General because that

would not become effective until I were actually sworn in. I would not

expect to be sworn in until such time as the dean's resignation became

effective. But there are, I think, a number of good practical reasons

why it would be very desirable if I could be confirmed previously to

that. One of them has to do with working on the cases if I were known

to be confirmed and therefore certain to take office.

Senator HART. Would you participate in the decisions then?

Mr. BORK. I would participate in discussions about the cases.

Senator HART. But you do not have to be confirmed as the Solicitor

to do that.

Mr. BORK. No, no • I do not. The other thing, of course, is 

Senator HART. What is the practical advantage?

Mr. BORK. Well, I think if it were certain that I would be the Solicitor General it would make much more sense for me to put my contri-
7

bution into that discussion and, in addition to that, Senator, there is

the problem of staffing. That is an office that has a regular turnover, a

lot of young people come to that office and work for a year or 2 or

3 and then leave, and there is some recruiting to be done, and if the

staff is to be chosen to fill those vacancies, then I think it would be

well that the man who does the recruiting and chooses the personnel

know that in fact he is going to be the Solicitor General when they

• come on the job.

Senator HART. Well, Secretary of Defense Laird indicated last summer that he was going to retire beginning with the new term, but we

were not asked to advise and consent to Secretary Richardson's nomination until about the time of the chance. Defense is a pretty complicated department, too. Do you think it is a good precedent if we begin

this as a pattern of practice to act on a nomination 6 months ahead of

time?

Mr. BORK. Senator, I think that the worth of the precedent might

vary a good deal from office to office. I cannot speak as to other offices. I

do not, candidly, see any problem with this office. I think what is to be

known about me is already known. I think it would have considerable

practical advantage if I were confirmed at this time so I could begin

to phase in and do the things that have to be done.

Senator HART. How does Dean Griswold feel about this?

Mr. BORK. Dean Griswold and I have discussed this procedure and

he is thoroughly in accord with my phasing in in this fashion.

I would say the dean has been extremely cooperative and extremely

kind and I look forward—one of the benefits of this office is the opportunity to observe him on the job and to learn from him.

Senator HART. I think we would kid ourselves to pretend that an

opportunity to observe, to come to know personnel, and, if it is desirable, even to have an input into decisions, requires the confirmation of

the indicated successor. There may be additional leverage as the result

of the confirmation although succession is 6 months ahead but given

the temperament of Dean Griswold I am sure you would be as welcome

as a consultant as a confirmed successor. Is that not true?

Mr. BORK. I am sure I would be welcome with Dean Griswold. There

is no problem there, Senator.

Absent confirmation, which implies the possibility that confirmation

will not be forthcoming, I would think it would be unfortunate if I

went ahead and put my input into these various decisions of staffing,

of cases, and so forth, and then it turned out for some reason or other

• that there was a different Solicitor General in that office in the fall,

having to live with things that I had influenced, a staff perhaps I had

chosen, that he had not chosen.

Senator HART. We must be careful that we do not do too much by

this precedent. So much of what you say could equally be said with

respect to most other posts.

On the matter that we did talk about—and if I had known about this

6-month thing I would certainly have raised it—

Mr. BORK. Yes, sir.

Senator HART. You have expressed yourself freely, and al*ays

with tight reasoning, on a number of subjects, antitrust matters, civil

rights. You will now for 6 months be a kind of Solicitor General, and
then presumably the Solicitor General after that, and in that role you

will be the Government's appeal lawyer. Is that not a shorthand way

of describing what you will be doing?

Mr. BORK. That is quite accurate/ Senator, yes.

Senator HART. It is a policy post?

Mr. BORK. Not particularly, Senator. I view it as a post of being the

attorney for the Government.

Senator HART. What if the Government takes a position in the field

of 'antitrust or civil rights that you think is wrong, and have said in 6

the past is wrong, what do you do?

Mr. BORK. What will I do? I will enforce the policy of the Government in antitrust as the Government defines it. I do not define it,

Senator.

I might say that in practice both for defendants in antitrust cases

and for plaintiffs in antitrust cases I frequently urged positions that

as an academic I would criticize.

Senator HART. If the Assistant Attorney General in charge of civil

rights has recommended action be taken against a school district or

several school districts, or if the Assistant Attorney General in charge

of antitrust wants to go after a conglomerate, and you believe on the

law that you would take a different view in both cases if you were the

Assistant Attorney General, as Solicitor General what do you do?

Mr. BORK. Well, of course, Senator, the initial determination to file

a lawsuit against a conglomerate or against a school district would not

come within my office at all.

Senator HART. That is right.

Mr. BORK. Those cases would be filed and then come to me, if at all,

upon appeal. At that stage, I am sure that I would continue the policy

of the Justice Department, even if I disagreed as an academic with

that policy. But that, I take it, is not relevant to my performance of

these duties; that is, my personal academic disagreement would not be

relevant to the performance of these duties.

Senator HART. Really your answer disarms me. I was going to read.

you some of the things you have written in both areas. Am I to understand that your concept of your duties as the Solicitor General is to

appeal, as 'aggressively and as effectively as you can, those Government

positions taken by the Justice Department notwithstanding the fact

that those positions may run squarely counter to strong opinions you

have voiced and written earlier?

Mr. BORK. That is correct, Senator. I have had that experience, I

may say, in practicing law. Lawyers on the other side have pointed out

thta I had written something in support of their position, and I have •

had 'occasion to say in court "I am trying to enforce the law and not

my own opinions."

Senator HART. I do not want to take more than my share of time and

will yield very shortly in order that others may proceed.

You participated, Professor Bork, in a symposium on the Cambodian incursion which was printed in the American Journal of International Law. Your remarks they were very brief really—included

comment on the President's authority for that invasion. At the conclusion of your remarks, you said:

The Cambodian incursion and its aftermath do raise important constitutional

questions but they do not seem to me to be the questions posed by some of the
9

other panelists. I think there is no reasons to doubt that President Nixon had

ample constitutional authority to order the attack on the sanctuaries in Cambodia seized by the Vietnamese-Vietcong forces. That authority arises from the

inherent powers of the Presidency and from congressional authorization.

The real question in the 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 tresspass upon the power the Constitution reposes exclusively in the

President.

You suggest, if I read your article correctly, that Congress can end

our involvement in Vietnam. While all of us hope we are approaching

a resolution of that, could you explain how, in your view, the Congress

does have the constitutional power and could end that war if our hopes

are dashed again?

Mr. BORK. Senator, referring to the article, or the brief comment,

you are reading from, my position there was that Congress certainly

has broad power over war or peace. It should be able to make that

decision. I was discussing the Cambodian incursion as more of a tactical problem because the enemy had seized bases in Cambodia and

were attacking into South Vietnam from there, and because the Government of Cambodia welcomed the American incursion and under

those circumstances, and all of these cases depend heavily on circumstances

'

under those circumstances that seemed to me to resemble a

tactical field decision, not an invasion, and not a starting of a new war

and, therefore, to be within the President's powers. And it seemed to

me that Congress, under those circumstances, ought not to assert constitutional power over tactical decisions and I thought that was one.

It certainly seems to me that the major question of war or peace is

always for Congress.

I might add, Senator, that this is a kind of question that will almost

certainly never come into the Solicitor General's office or to the courts.

Senator HART. Maybe I am asking for your advice as a constitutional lawyer whether or not it comes to you as the Solicitor General.

In that same article, you say:

I arrive, therefore, at the conclusion that President Nixon had both constitutional power to order the invasion and that Congress cannot with constitutional

propriety undertake to control the details of that incursion.

You have developed that point in your answer.

But you continue:

This conclusion in no way detracts from Congress war powers, for that body

retains control of the issue of war or peace. It [Congress] can end our armed

involvement in Southeast Asia.

•

How?

Mr. BORK. Well, Senator, I confess that I have not studied the question of the particular form your efforts take, whether it would be—if

that were the decision of Congress—whether it should be by cutoff of

funds or some other mechanism. I am sorry to say I have not studied

it. I was at that point, in that brief comment, merely trying to point

out there was a spectrum of war powers running from Congress major"

powers to the President's more detailed powers.

Senator HART. Is it fair to say that clearly you believe we have the

power to end our involvement, and inescapably it follows that the

President would be obliged to respect that ending, if we can end it,

and that it means the President cannot ignore us?
10

A

Mr. BORK. As I read the Constitution, Senator, the ultimate power

of war and peace resides in the Congress.

Senator HART. You have not thought through how we end it?

Mr. BORK. No, sir; I have never addressed myself 

Senator HART. We have the power, you feel certain of that?

Mr. BORK. It seems to me the Constitution requires that conclusion.

Senator HART. The Constitution operates equally on the legislative

and the executive branches?

Mr. BORK. Indeed, Senator.

Senator HART. I pass for the moment.

The CHAIRMAN. Senator Burdick?

Senator BURDICK. I have no questions, Mr. Chairman.

The CHAIRMAN. Senator Tunney ?

Senator TUNNEY. Thank you, Mr. Chairman.

I share with my distinguished colleague from Michigan a concern

about the confirmation process taking place 6 months in advance. I

do not, however, feel that this in and itself should be a reason for

denying confirmation.

But I wonder if you could, Mr. Bork, say if there would be any

reason why, to your knowledge, 6 months from now you could not just

as readily be confirmed as you would be today?

Mr. BORK. No, Senator. I think, as I understood the time element,. I

think it would be a little over 4 months when I planned to assume that

office rather than 6. But I do not know of any reason why the confirmation could not occur then.

It would be a considerable practical advantage if it occurred now

for the reasons I have detailed with_ Senator Hart, and the President

has nominated me at this time and my name is before the Senate.

Senator TUNNEY. As I understand the role of the Solicitor General

in all cases involving the executive branch, including the regulatory

agencies, with the exception of the ICC, the Solicitor General grants

or denies requests of petitions for certiorari or to appeal adverse

decisions; and if the Government is the respondent, the Solicitor General decides whether to contest the appeal. And the Solicitor General

also participates as amicus curiae on his own initiative or upon the

court's requests; and the Solicitor General is often involved in interagency disputes before the court and may take one side or the other.

This would indicate that the Solicitor General does have considerable power in determining what cases will be heard before the Supreme

Court and what cases will be appealed or not. In a statistical study it

was found that the Solicitor General approved less than 20 percent of

the requests for certiorari petitions sought by executive departments,

and less than 60 percent of those requested by the appellate sections of

the Justice Department, and less than 65 percent of those requested by

regulatory agencies.

What this means is simply that the Solicitor General imposes to a

very considerable extent his philosophy or his view of legal matters

upon the process of appellate review to the Supreme Court.

I must say I, as was Senator Hart, am disarmed by your statement

that even though an appeal related to a matter that you personally,

legally, and philosophically disagreed with, that you would express

the will of the Government in the appeal.
11

However, before we get to the appeal, before the appeal action takes

place, would not you have wide room for imposing your own personal

view of the law upon that appellate process even where you disagreed

with the Attorney General or with the appellate division of the Justice

Department ?

Mr. BORK. That is an important question, Senator Tunney. I would

like to point out that the Solicitor General has the degree of freedom

that he does have by custom and tradition really on condition that he

not abuse it. By law he is under the Attorney General's direction so

that there is the fact that the discretion that the Solicitor General has,

I think, is reposed only because it is understood that he will not abuse

it.

Secondly, the Solicitor General must view himself, I think, as an

officer of the Court, and he must, to the degree possible, obtain the

confidence of the Supreme Court. I do not see how a Solicitor General

who imposed his own views upon the appeal process and kept cases

from the Court that the Court thinks it ought to have, could conceivably retain the trust of that Court. I think he would, in effect, destroy

his own value as Solicitor General if he did that.

Senator TUNNEY. Well, in light of that, I would like to ask you

about a statement that you wrote in the September 1969 issue of Fortune magazine in which you criticized the antitrust policy of the Nixon

administration. You said:

The Nixon administration's announced determination to wage war on conglomerate mergers—with special but by no means exclusive attention to the

acquisitions of the top 200 manufacturing companies—must rank as one of the

bleakest, most disappointing developments in antitrust history.

Do you continue to hold this true of the Nixon administration's antitrust policy ?

Mr. BORK. Senator, in my opinion, which is my opinoin as an academic in this field, the conglomerate merger campaign was an ,antitrust mistake. However, it should be said that this administration,

and this Justice Department, continues to enforce the antitrust laws

vigorously. They have guidelines about conglomerate mergers. Those

will be enforced, and should such a case come up to me that case will

be dealt with in line with that policy and not in line with my academic

opinion I expressed in that article.

Senator TUNNEY. You just answered my next question.

Let us go to another area of antitrust enforcement where the Solicitor General may have an impact and that is the Federal Trade Commission. The FTC was responsible for bringing the organizational

case against Proctor and Gamble in its acquisition of Clorox which

went a long way to establish the principle that one large company

could not acquire another company having a large share of a market

where the first company is a potential entrant into that market.

In your 1967 Fortune magazine article you strongly disagreed with

the Supreme Court's opinion affirming the FTC's position, and near

the end of your discussion, you observe that "defendants are simply

not winning cases they should win in the Supreme Court." Earlier in

that article you noted that the then Solicitor General Thurgood Marshall had to decide whether to seek Supreme Court review of the Court

of Appeals decision adverse to the FTC.
12

If this case had come to you as Solicitor General—with the FTC

requesting Supreme Court review—what would have been your position? Would you have approved the Commission seeking review?

Mr. BORK. Well, it is a little hard to answer that now, Senator. I

think I probably would have. Of course, I would have to put myself

back at that time as to what the policy of the administration was with

respect to that kind of merger. If the policy of the administration was

to go after it, yes, I would have approved the appeal.

Senator TUNNEY. You would have approved the appeal, and that is

in line with your answer to a previous question that you would enforce

the policy of the Justice Department and the other agencies as they

relate to these and antitrust matters?

Mr. BORK. Yes, sir.

Senator TUNNEY. Let us move from antitrust policy to the first

amendment. In a recent article you wrote that the "first amendment

must be cut off when it reaches the outer limits of political speech."

You argued that only explicitly political speech should be protected

by a first amendment:

The category of protected speech should consist of speech concerned with governmental behavior, policy or personnel,whether the governmental unit involved

is executive, legislative, judicial or administrative. Explicitly political speech

is speech about how we are governed and the category therefore includes a wide

range of evaluation, criticism, electioneering and propaganda. It does not cover

scientific, educational, commercial or literary expressions as such. A novel may

have impact upon attitudes that affect politics, but it would not for that reason

receive judicial protection.

Now would you care to relate that comment to how you feel about

recent Supreme Court decisions relating to the freedom of speech?

Mr. BORK. Senator, the article you have there, I think I should point

out, is explicitly a tentative and rather theoretical attempt to deal with

the problem, and it starts off with an attempt to pick up Professor

Wechsler's concept of neutral principles and see what can be done with

that concept. At the end of the article I point out that I think these

are the conclusions that are required by that idea of neutral principles,

but that I am not sure about the whole subject. It seems to me, to move

closer to your question, Senator, that—let me say that article is a theoretical exercise. As a professor, I am paid to speculate, and I do speculate • sometimes I wish I had confined myself to writing about spendthrift trusts, but I speculated in that area, and I think the concept of

neutral principles suggests those results.

If you move, then, away from the concept of neutral principles and

adopt some other concept those results are not required. I do think that

the speech about politics, speech about government, speech about candidates, legislatures, judges and so forth, are the core of the first

amendment. That is the most important part of the first amendment,

because the first amendment is essentially about the political processes

by which we govern ourselves in a representative democracy.

It seems to me as you move out from there the first amendment's

claims may still exist but certainly by the time, in my own view, by

the time they reach the area of pornography, and so forth, the claim of

first amendment protection becomes rather tenuous.

Senator TUNNEY. In other words, you feel that the Supreme Court

in some recent cases in relation to pornography did not interpret the,

law correctly?
13

Mr. BORK. I think some of the guidelines they have laid down are

unfortunate, Senator, because they are going to have a terrible time

applying them, and as I recall, the Supreme Court has taken up a lot

of those cases again this term in an effort to review the whole problem.

I think when you get cases that appear to be Much the same on the

facts going different ways, as has happened in this field, you have

perhaps a suggestion, an indication, that the law could use some further refinement.

Senator TIONNEY. Would you feel it to be appropriate where you

disagree with a Supreme Court decision of the past to appeal the case

to the Supreme Court in the hope that you can get a reversal of a

previous opinion?

Mr. BORK. I am sorry. I think that would be appropriate if there

was reason to believe that the Supreme Court wished to reconsider the

subject. I do not think I ought to take appeals up just because I would

like to reconsider the subject.

Senator TUNNEY. But where you felt that the Supreme Court, as it

is presently constituted, might reverse itself, I take it that you believe

that it would be appropriate to appeal even where there had been a

decision that was contrary to what your own personal views were and

are and where you had a feeling that the Supreme Court might make a

decision which would be more in line with your views?

Mr. BORK. Senator, I think that whether I think the Supreme Court

is likely to do it, whether to come down more in line with my views, or

perhaps less in line with my views, if I have reason to believe the

Supreme Court wants to consider the subject, it seems to me, as an

officer of the court, I ought to bring that case up and explain the

varying positions that are available.

Senator TUNNEY. You have challenged the correctness of the "one

man, one vote" formula established by the Supreme Court in Reynolds

v. Sims and companion cases. In a December 1968 Fortune magazine

article you state that "on no reputable theory of constitutional adjudication was there an excuse" for the "one man, one vote" doctrine. Do

you continue to believe that the Supreme Court erred in establishing

the "one man one vote" principle ?

Mr. BORK. I do, Senator. I think the Supreme Court was quite right

in Baker against Carr in going into the reapportionment field and I

think Justice Stewart had what I would consider the correct approach,

which would be to say "Show me a rational apportionment plan, show

me that the majority of the people in that State can change that apportionment plan when they wish to and I will approve it.

I think "one man, one vote" was too much of a straight jacket. I do

not think there is a theoretical basis for it.

I may add my own experience as a special master in Connecticut

applying the "one man, one vote" rule in the State confirms me in that

belief.

Senator TUNNEY. In Reynolds v. Sims, the Solicitor General argued

the case for the United States, as amicus curiae, at the request of the

Supreme Court. The Solicitor General argued for "one man, one vote."

If you had been Solicitor General, would you have been able to argue

for 'one man one vote?"

Mr. BORK. 

man,

I have been able to? Yes, sir; I would have been

able to. I would have advised against it.
14

Senator TUNNEY. You would have advised the court against it

or 

Mr. BORK. I would have—it is a little hard to speak without putting

it in an institutional context. If it were that kind of an important case

I am sure the Solicitor General would confer with other members of

the Justice Department about it. In that kind of conference I would

have advised against urging a "one man, one vote" position. I would

also have wished, whether my advice were accepted or not, to explain

to the court that there were the following options, kinds of roads the

court might take, and try to explain to the best of my ability what I

considered to be the benefits or costs or detriments to each such option.

Senator TUNNEY. And that despite the fact that the Attorney General requested you to argue in favor of "one man, one vote?"

Mr. BORK. I think I would say to the Attorney General at that time,

"I will do so." I also would advise that we explain to the court, since

we have an obligation to the court that a private litigant does not

always have, that we explain to the court what some of the problems

with that approach may be and what alternative approaches there

might be.

Senator TUNNEY. Well, if a "one man, one vote" case should arise

while you are the Solicitor General, would you file an amicus brief

attempting to limit the doctrine of "one man, one vote" as enunciated

by the court?

Mr. BORK. I have not made any decision about it, Senator, in fact

had not even thought about it. I do not think it is likely to come up

because the court has on its docket this term reapportionment cases

from all over the country, and I think it is a good guess that they

intend to review that entire field. Whether they will confirm "one man,

one vote" or move to some other position, I do not know.

Senator TUNNEY. Do you think that you could sign a brief that was

inconsistent with your personal views?

Mr. BORK. I think I can, Senator, and I know that I have.

Senator TUNNEY. I have other questions but I do not want to take

the time if there are others who have questions.

Senator HRUSKA. Go ahead.

Senator TUNNEY. In an August 1963 New Republic article you

opposed the enactment of the then proposed Interstate Public Accommodations Act. In a subsequent letter, you stated:

The proposed legislation, which would coerce one man to associate with

another on the ground that his personal preferences are not respectable, represents such an extraordinary incursion into individual freedom, and opens up so

many possibilities of governmental coercion on similar principles, that it ought

to fall within the area where law is regarded as improper.

In light of this statement of your beliefs, I would like to ask you a

few questions about enforcement of the Civil Rights Act.

Mr. BORK. Senator, may I 

Senator TUNNEY. ire&

Mr. BORK. I should say that I no longer agree with that article and

I have some other articles that I no longer agree with. That happens to

be one of them. The reason I do not agree with that article, it seems to

me I was on the wrong tack altogether. It was my first attempt to

write in that field. It seems to me the statute has worked very well and
I

15

I do not see any problem with the statute, and were that to be proposed

today I would support it.

Senator MATHIAS. Would the Senator from California yield for just

a minute in the light of his previous generous offer.

Senator TITNNEY. Yes.

Senator MATHIAS. I, unfortunately, have to leave the committee in a

few minutes and I have just two or three very brief questions.

Let me say, first of all, that I was considerably encouraged and

pleased by the colloquy between you and Senator Hart in which you

stated your conviction, which is a conviction I share, that the Congress is still the repository of the power to decide the issue of war

and peace. It is an important statement on your part and one that I

welcome and applaud.

You said that this was just a general constitutional conviction on

your part, not one that you had thought out in its tactical aspects and

how it would be implemented. I would like to offer one possible means

of implementing it, one that I certainly hope we will never resort to,

one that I hope that the lubricant of goodwill that has kept the Government working for so long will prevent us from ever resorting to,

but it is the simple act of one Chamber of the Congress, either the

House or the Senate, failing to concur in an appropriation bill to

supply the funds to continue hostilities.

It would seem to me, and I would like to ask you what your attitude

would be, that this would simply be the end of it, if either the House

or Senate did not approve an appropriation bill or did not act on it

one way or the other.

Mr. BORK. Senator, I must say I really have not studied this aspect

of the question at all. What we have, what the Senator had there, is

that I was a discussant on a panel, and the panel was about the Cambodian incursion, and I was merely suggesting the range of powers

that I thought the Constitution suggested were appropriate to the

President, on the one hand, and the Congress, on the other, and I am

afraid that is about as far into that field I have gone. Ultimately, I

think, war or peace is for the Congress. I have not really thought

about how, in varying situations, the Congress makes its will known

if it wishes to.

Senator MATHIAS. I feel that as you enter the field you are on the

right path and I walk with you.

I have only one other question to ask and it is are you currently

of counsel in any active litigation?

Mr. BORK. I am currently an attorney for two plaintiffs in antitrust cases in New Haven. I intend, if confirmed, to wind up my participation in those cases altogether very shortly.

Senator MATHIAS. Either to resign as counselor or 

Mr. BORK. In. fact, I have filed a motion in one case to withdraw

as counsel. The judge asked that I stay in for a while longer, and I

thought it was proper to do so until confirmation or something of

that sort occurred, because it is a case I started and had been the prime

mover in it.

Senator MATHIAS. It would seem to me that it might be helpful to

you for your protection as well as being of help to the committee to

give us some official notice of the title of those cases, not at this point,

but to supply it for the committee at some point.
16

Mr. BORK. All right.

[The following letter was subsequently received by the committee.]

ASSOCIATE DEPUTY ATTORNEY GENERAL,

Washington, D.C.

Hon. JAMES 0. EASTLAND,

Chairman, Judiciary Committee, U.S. Senate, Washington, D.C.

DEAR SENATOR EASTLAND : At his confirmation hearing on January 17, 1973,

Professor Robert H. Bork was asked to supply the names of those cases in which

he was involved at present. Accompanying this letter you will find names of two

cases pending in the Federal District Court for the District of Connecticut which

Mr. Bork informs me are the only two cases he is associated with.

Sincerely,

Enclosure.

CHARLES D. ARLARD,

Associate Deputy Attorney General.

(1) Landmarks Holding Corporation, et al, plaintiffs v. Hamden Mart, Inc.,

et al, defendants, Civ. Act. No. 14,572 (D. Conn.) (counsel for plaintiffs).

(2) George P. Aker, Richard C. Bond, Jervis Langdon, Jr., and Willard TVirtz,

Trustees of the property of Penn Central Transportation Company, successors in

interest, Richard Joyce Smith, Trustee of the property of The New York, New

Haven & Hartford Railroad Company, plaintiffs, v. United States Steel Corporation, Bethlehem Steel Corporation, Armco Steel Corporation, Edgewater Steel

Company, Baldwin-Lima-Hamilton Corporation, and Abem Corporation, defendants, Civ. Act. No. 12,156 (D. Conn.) (counsel for plaintiffs).

Senator MATHIAS. Thank you very much. I appreciate the kindness

of the Senator from California in yielding.

Senator TITNNEY. Thank you.

I was interested in your statement that you no longer agree with

the position that you held in 1963. Does that mean that you would

vigorously enforce the Interstate Public Accommodations Act?

Mr. BORK. Certainly, Senator. If it comes to me on appeal, I will

take the Government's position.

Senator TCrNNEY. Have you taken a position with respect to the

correctness of the Supreme Court's decisions in South Carolina v.

Katzenbach and Katzenbach v. Morgan, which upheld the constitutionality of the 1965 Voting Rights Act?

Mr. BORK. I have Senator. My position was that I thought South

Carolina against KAzenbach was correct, and I thought Katzenback

against Morgan was incorrect.

Senator TITNNEY. You thought it was incorrect?

Mr. BORK. Yes.

Senator TUNNEY. Do you still feel that way.today ?

Mr. BORK. Well, insofar as Katzenbach against Morgan says, as I

read it to say, that Congress controls the content of constitutional

protection, I think that is incorrect because I think that is ultimately

under the tradition of judicial review we have had in this country. I

think that is ultimately a question for the Supreme Court.

Senator TTJNNEY. Do you feel that you are prepared to make that

appeal if the Attorney General had wanted you to, despite your personal feelings?

Mr. BORK. If the Attorney General wanted me to take that appeal I

would take that appeal.

Senator TTINNEY. If further questions should arise about the constitutionality of the Voting Rights Act, could you as Solicitor General take a position consistent with Katzenbach v. Morgan?
17

Mr. BORK. Could I take one consistent with it? I think so, Senator

if that is indicated.

Senator TUNNEY. Have you a position with respect to the correctness of the Supreme Court's decision in Harper v. Virginia Board of

Elections, which held that the imposition of the poll tax was unconstitutional ?

Mr. BORK. I think I have, Senator. I am trying to cast my mind

back on things I have written. I think I have previously indicated

that that case, as an equal protection case, seemed to me wrongly decided. It might have been decided the same way, and now we are

getting into areas of speculation and theory more appropriate to my

role as a professor.

It seems to me a lot of those cases are really essentially republican

form of government clause cases and maybe you can uphold that decision on a theory like that rather than on an equal protection theory.

May I add, Senator, that was a case in which there was no evidence

or claim of racial discrimination in the use of the poll tax. If there

had been, of course, it would be properly an equal protection case

and the result would have come out just the way it did.

Senator TUNNEY. How do you feel now about the decision. Do you

think that as far as the welfare of the Nation is concerned, the Harper

case was correctly decided?

Mr. BORK. I do not really know about that, Senator. As I recall, it

was a very small poll tax, it was not discriminatory and I doubt that

it had much impact on the welfare of the Nation one way or the other.

Senator TITNNEY. How about the welfare of those people who had

to pay it and might not have been able to afford to pay it, for those

people who perhaps would have been inhibited from registering to

vote and voting because of the poll tax?

Mr. BORK. Well, I would hope that a State would take some measures to enable those whose means do not permit them to pay a tax like

that to pay it or to be relieved of it.

Senator TUNNEY. What about the constitutional issue?

Mr. BORK. Well, I think that is a question of degree. It depends

upon the size of the poll tax, but I think we are discussing something,

Senator, that is past us down the road.

Senator TUNNEY. You do not think it is any longer an issue?

Mr. BORK. No, I do not think it is an issue of any sort today and I

certainly am not interested in reviving it as an issue.

Senator TUNNEY. And you would have no difficulty arguing the law

as the Supreme Court announced it in that case?

Mr. BORK. None whatsoever.

Senator TUNNEY. You state in a June 1968 article in New Republic

that:

The virtue of minimum-wage legislation is an article of faith with collectivist

liberals, but its effects and the sources of its real political appeal are far different than they imagine. The popular myth is that minimum wages redistribute

wealth from wealthy employers to poor workers. The plain truth, recognized by

economists of widely different political persuasions, is that the effect of such

laws is to protect well-paid, highly skilled workers from the competition of the

less skilled.

In light of this statement, what are your views on the wisdom of the

Federal laws regulating minimum wages and maximum hours for

workers?
18

Mr. BORK. Those are two different cases. There may be a case for

regulating maximum hours which is for the health of the workers,

and it is a different (question and I must say that the issue I am about

to discuss with you is not one I would discuss as Solicitor General. It

is not my question at all, it is not even a question for the judge, the

wisdom of those laws it is only a question for Congress. But if you

nevertheless wish me 

laws,

go on, I think that economists of very different

persuasions, in fact I do not know an economist, regardless of his politics, who will not say that raising minimum wages is detrimental to

the less skilled members of the work force, and particularly to, it is

particularly harmful to the efforts of blacks to obtain employment. I

have seen that demonstrated theoretically and I have seen it demonstrated empirically.

Senator TUNNEY. Empirically how?

Mr. BORK. Well, for example, in the article you cite, Senator, there

is a statement taken from an economist that the first time black teenage

unemployment deviated, became larger than white teenage unemployment was when a minimum wage law, an effective minimum wage law,

went into effect.

Senator TUNNEY. I recognize that others of more liberal persuasion

perhaps than you have made the same argument. I do not think this is

an appropriate forum for us to fight it out.

Mr. BORK. If I may say, Senator, in that article you are quoting

from, I do claim to be a liberal. I suppose we may argue about the

claim, but I do claim to be a liberal.

Senator TUNNEY. You may be.

[Laughter.]

Senator TUNNEY. But does your opposition to minimum wage laws

extend to other labor laws

'

such as those providing for collective bargaining and for job safety?

Mr. BORK. No, it certainly does not apply to job safety. When you

say opposition, Senator, this is not one of the causes of my lifetime. It

was a remark made in a piece about politics, and I do not spend my

time running around opposing minimum wage laws. I do not oppose

effective job safety laws or minimum hours.

Senator TUNNEY. Thank you very much, Mr. Bork.

Senator HART (presiding). Senator Hruska ?

Senator HRUSKA. Mr. Bork, how many professional members has

the staff of the Solicitor General's office?

Mr. BORK. At present 14, Senator.

Senator HRUSKA. Is that considered an adequate number for the

volume of work that crosses the desks?

Alf. BORK. Well, it is not so considered by Dean Griswold. He thinks

he can use three, four, or five additional members. But he also has no

place to house them if he had them.

Senator HRUSKA. That would indicate that the volume is quite substantial, would not it?

Mr. BORK. It is indeed.

Senator HURUSKA. And, of course, it is only the difficult decisions

that reach the Solicitor General's office. If they are not difficult they

are disposed of long before they get to the attention of the Solicitor

General, is that not correct?
19

Mr. BORK. Well the dean

'

as I understand it, Senator, makes a

practice of looking at every decision about a case that goes through

his office, and it seems to me that is a salutary practice, and I would

try to do that. Of course, many of them are quite easy decisions. They

come with recommendations from the division of the Government involved, plus a recommendation from a member of the Solicitor General's staff, but I think it is salutary for the Solicitor General to know

as much as possible about the flow of work through the office.

Senator HRUSKA. Would you have any idea how many cases are now

pending in the Supreme Court that will require argument by the

Solicitor General?

Mr. BORK. I think the Solicitor General's office is likely to have

about 60 major cases 60 cases which will be decided on the merits.

Senator HRUSKA. How many?

Mr. BORK. Sixty, approximately 60 a term. But all of those are not

argued by the Solicitor General. Members of his staff argue them as

well, and often the lawyers from the various divisions of the Government who are primarily concerned with the matter may argue

cases.

However, the Solicitor General does shape the case with those people, and work on the brief. It is not a question of just turning over

the case to the other people, but in terms of argument the Solicitor

General himself does not argue all of those cases.

Senator HRUSKA. There is certainly reason to seek an orderly transition from one Solicitor General to another, and I presume that

would involve getting familiar with the cases that are pending, is

that not true?

Mr. BORK. That is correct. The dean has provided a desk for me

and the thought was that when confirmed I would come down there

and begin working on the flow of matters through the office, being

educated by him.

Senator HRUSKA. Some thought has been given to the matter of

your confirmation at the present time rather than waiting until a

later time. Some of the considerations are that you would be able to

phase out your present occupation, and make an orderly entry into

the very complex and very important duties of the Solicitor General.

Have you any comments along that line? I know you have participated in discussion along that line?

Mr. BORK. I think it would be terribly helpful, Senator, if I were

confirmed so that people to whom I offered staff positions would know

in fact the offer was going to last, and they would be able to make

their plans, and I could contribute my discussion in the cases coming

up next therm with everybody secure in the knowledge that at least

I would have some responsibility in those cases.

I had not mentioned that as to my personal life, of course, it would

materially smooth my way if I could arrange schooling for my children and find a place to live, and so forth, secure in the knowledge

that I would indeed be here.

Senator HRusKA. I have no further questions, Mr. Chairman.

Senator HART. The exchange you had with Senator Tunney on your

article in the Indiana Law Journal was a rather complex analysis

and I think in fairness we ought to have the entire article.
•

20

Mr. BORK. Yes.

[The article "Neutral Principles and Some First Amendment Problems" in the Indiana Law Journal, Fall 1971, was filed with the

committee.]

Senator HART. Also, I read you an excerpt from a symposium

printed in the American Journal of International Law and I think

the whole article ought to be included in the record.

[The article referred to was filed with the committee.]

Senator TUNNEY. Perhaps, Mr. Chairman, we ought also to include

the New Republic article and the Fortune articles.

Senator HART. Yes, all of them.

[The articles referred to were filed with the committee.]

Senator HART. I have some questions on that first amendment point

of free speech: how far does it go, what is involved? When you were

talking to Senator Tunney, you suggested two extremes, political

comment and in quotes "pornography." There is a very hot area at

the moment that lies some place in between

'

and that is the business

of the press freedom, and the power of the Government to compel a

newsman to divulge confidential sources. How do you handle this.

What is your feeling?

Mr. BORK. Well my feeling is, Senator, it is not a topic, again, that

I have looked into and can express a position. My feeling is that it

would be well to have some careful legislation about the subject because obviously there are cases, I am sure, in which a reporter ought

to protect his sources and there are cases where he obviously ought

not to.

Senator HART. Do the cases where he should be permitted to protect his sources, in your judgment, relate to explicitly political stories,

as you use that phrase?

Mr. BORK. I would suppose so. Senator, I really should not hazard

opinions on this because I have not thought this through and, furthermore, I hate to hazard opinions on it because, if confirmed, I may find

myself taking a position in a case and I would hate to have a lawyer

on the other side read to be a statement I made today which is to the

contrary.

Senator HART. We have already described a number of statements

that are going to be read to you if, in fact, you appear in court, as

you told us you will—

Mr. BORK. I know, I know.

Senator HART. —in opposition to already stated positions.

Mr. BORK. But those are positions I have thought through. Those

are subjects which I have thought through. This is certainly one I

have not thought through. It would seem to me that the area in which

the Government's power to get information about a source is greatest

would be in the area where a violent crime had been observed or national security, espionage, something of that sort, is involved.

It seems to me the Government's power would be least in the area or

maybe nonexistent in an area where something properly called political speech was involved.

Senator HART. I am not pushing you now for an answer on an aspect

of this that you have not thought through. But I think the key to it is

whether you believe and understand the first amendment is available

only with respect to political speech, disclosure, protest?
0

21

Mr. BORK. I have to insist, I am 'afraid that when I wrote that article

I was entering into a field for the first time, and I was trying out a

theoretical concept, if you will. I do not know what I will ultimately

conclude in the field. I have changed my mind on large issues in the

past. I do not think that theoretical concept is anything I would ever

urge on the court. It was speculative writing which professors are

expected to engage in, without meaning that that is what they believed

for all time or that is what they think would be appropriate for some

other organ of Government to pick up at that time and it is explicitly.

stated to be speculative in that sense.

Senator HART. I told you that your answer with respect to your willingness to move as some Assistant Attorney General might want on an

appeal even though it was to advocate a position that you had earlier

written against, disarmed me. But I have to reach for the arms, at least

mildly now, because as I understood you when you were talking to

Senator Tunney on the "one man, one vote" issue you said that you

would be able to defend the "one man, one vote" proposition as it has

evolved but that you would advise against it.

Senator 

Mr. BORK. 

HART. 

I meant 

Whom 

if the administration wereare you going to advise?

Mr. BORK. Well, the question Senator Tunney asked me essentially

was, I think, if I had been Mr. Cox at the time that camp up, when

you had no firm law on the subject, and the question was what should

the court do in this area, that is a subject so important that I am sure

the Solicitor General confers with other persons in Justice and, perhaps, elsewhere, I do not know. In that kind of conference, in deciding

what should Justice's position be on this matter, I would have advised

internally against pushing for "one man, one vote" as the resolution of

the problem and would have urged that the position taken by Justice

Stewart be taken as the solution to the problem.

Senator HART. You also said, I believe, that you would sign a brief

although the brief represented a view that you, as an individual and as

a 

lawyer, 

felt to be wrong. I have read in the press that Dean Griswold has taken an opposite view and will not sign briefs?

Mr. BORK. I think there is a distinction there, Senator. What I

meant was that when I thought the law was wrong but it was the law I

would sign the brief. If I think it is not the law, I certainly won't

sign the brief.

Senator HART. Very specifically, you wrote some very harsh criticism of the Justice Department's action 'against IBM in an antitrust

case.

Now, the resolution of that case on appeal, I suppose is a, long way

off, but assume it comes when you are the Solicitor General. What

do you do about it?

Mr. BORK. At that time, if it comes, if you mean if the Government

loses below, Senator, I think it would depend on a variety of factors,

and one would be the recommendation of the Assistant Attorney General, one would be the recommendation of the Attorney General, one

would be the grounds upon which the court below went, one would be

the state of the law as it had developed in the interim. There would be

a wide variety of factors to be considered.

Senator HART. Have we the cart before the horse? You say one

element would be the position of the Attorney General. But won't you

be advising the Attorney General?
22

Mr. BORK. Yes. So would the Assistant Attorney General in charge

of antitrust.

Senator HART. Well, in that setting is it possible to say that you

would inescapably, would you not—and I am not using this critically—be using the Office of Solicitor General inescapably as an opportunity of advancing your own views on policies with respect to

that case?

Mr. BORK. I trust not, Senator. When you say advancing my own

views, how do you mean, Senator, you mean by not allowing an appeal?

Senator HART. Arguments against the appeal, counseling against

the up-peal, because in your judgment it would be an imprudent interpretation or economically undesirable result?

Mr. BORK. Well, you know, I find it a little hard to place myself in

that position in the future, and one thing I hope to learn is how the

office operates. Certainly if I got into a discussion—my position about

the wisdom of this kind of case is well-known, so, well, let's discuss

what the policy is aside from my position about the wisdom of bringing that kind of a case.

Senator HART. If you shared all my sound views on antitrust this

would not bother me a bit. I think you should.

Mr. BORK. I will make the attempt, Senator.

[Laughter.]

Senator HART. No specific issue bears more directly on the domestic

scene than Federal courts seeking to deliver 14th amendment guarantees to children who are found to be in segregated schools and as a tool,

with all its unhappy limitations, is bussing and in some situations it is

found to be the only, although limited, means available to give some

relief.

Now, you played a substantial role if the press reports are correct,

in drafting the President's so-called Equal Educational Opportunities Act of 1972, at least you had a role in shaping its basic structure,

and you have several times said that you feel that the bill is good policy

and constitutionally sound.

I was referred to and found very interesting one aspect of your testimony before the House committee, which is at page 1509 of the printed

hearings. Your testimony is as follows :

I would be clear about this: Congress certainly may not deny all remedies for

segregation. I do not think Congress could even completely ban bussing as a

single remedy. As the court noted in the strong opinion involving the North

Carolina bussing statute, there are cases in which bussing is essential to the vindication of a constitutional right, and I would think it highly doubtful that

Congress could ban bussing and have that statute stand up in the courts.

Do I take it from that passage that if the constitutional right cannot

be vindicated without a particular remedy, there is only one remedy

available to vindicate the right, that Congress cannot deny the court

the availability of that remedy?

Mr. BORK. I believe that to be the case, Senator, because it seems to

me that in such a case Congress would be denying the right and I previously just suggested that is not within the power of Congress.

May I make one comment, Senator. I think the press reports are not

entirely accurate. I was called in as a consultant to the Cabinet Committee on Education. The breadth of my consultation was entirely

within the area of law and the constitutionality of that bill. I was not
23

the only consultant, and I have confined my statements about the bill

entirely to the constitutional issue, because it seems to me that is the

only place such expertise as I may have obtains.

Senator HART. All right. '

I appreciate that clarification of your role, and I asked the question

because much of your defense of the bill has been based on the distinction between rights which you deem absolute, and the remedies available for violation of those rights which, as you say, may involve balance and compromise of peoples' claims.

But I take it from the passage I have quoted that if the right cannot

be fixed any other way then Congress cannot legislate out of the hands

of the court that one tool?

Mr. BORK. Right. I entirely agree with that, Senator. If it were any

other way, Marbury against Madison would not mean anything.

Senator HART. I wish the full committee were here to hear that.

Lastly, how do you feel about a constitutional amendment? How

does that start: no citizen shall be denied the equal protection of the

law? What about an amendment that says in substance that no citizen

except a black child shall be denied the equal protection of the law?

That is the way. I have interpreted many of the amendments that have

come to my attention. Could we do that?

Mr. BORK. I beg your pardon, Senator, what was the nature of that

constitutional amendment?

Senator HART. Well, it was partly a speech rather than a question.

Mr. BORK. All right.

Senator HART. The need for busing is the result of a finding that a

14th amendment right is being denied to somebody's children. While

legislative proposals have been made to attempt to outlaw busing as

a remedy, increasingly there is developing an understanding, and I

think you would help us in making this clear, that really there is no

way to escape the mandate of the 14th amendment. You would have

to amend the 14th amendment to, as they say, outlaw busing. How do

.you feel about such a matter?

Mr. BORK. You mean a constitutional amendment? Senator, I testified in that same hearing to which you referred that I did not think

a constitutional amendment was appropriate in this field.

Maybe I should clarify one thing about the particular busing bill

that I said was probably constitutional. It is legislation that enters

into an area where the constitutional guidelines are quite few, and I

think that a reasonable or a rational lawyer can only make estimates

of probability. But with that in mind, it ought to be noted that the bill

I testified about did not ban busing for students in the 7th grade and

up, it merely said to the court: Look at other remedies and see if they

will do the job. If they won't, then you may order busing.

For the students in 6th grade and below, the bill said: Busing may

be ordered but only within certain quantative limits, which I cannot

now recall exactly. That distinction rested in part upon the Supreme

Court's opinion in the Swann case in which the court suggested that

the ages of students might make a difference in the appropriateness

of busing. It is a careful bill, it is a qualified bill, Senator Hart.

Senator HART. Which was amended, and that you are talking about

got lost.

Mr. BORK. I was not involved in it after the initial drafting.
94

Senator HART. I understand.

Getting back to the constitutional amendment, I assume that the

Constitution can be amended to do anything the amendment says

which then by definition becomes constitutional. But what I am asking is what is your opinion as to the wisdom of amending the 14th

amendment so as to prevent the use, the mandatory use, of buses?

Mr. BORK. I would oppose that, Senator, and I have opposed that

in the testimony to which you refer.

Senator TriNNEY. I have one last question that is stimulated by

your line of questioning, Mr. Chairman. I am curious to know with

respect to antitrust what your attitude is to the guidelines that

Donald Turner issued in 1968 with respect to horizontal mergers. He

said that in these kinds of mergers between firms for market shares

of 4 or 5 percent each that this conceivably would violate the antitrust laws. Do I understand your thinking correctly that the merger

would have to involve somewhere around 30 percent of the market

share in order to be violative of the antitrust laws?

Mr. BORK. 

Senator, 

let me clarify that. I think it will have to be

somewhere around 30 percent before a realistic economic danger appears. That may not be the same thing as violative of the antitrust

laws. The antitrust laws may deny an amount below where the economic danger appears. The law is shaped by the Brown, Sh,oe decision

and by the Pabst decision. Brown Shoe said a 5 percent market share

is illegal and Pabst suggests 4.49 percent is illegal.

Senator TUNNEY. And Mr. Kauper, who has of course now taken

over as head of that division, has indicated that he is going to enforce

the guidelines. As a matter of policy you would have no difficulty

arguing these cases on appeal to the Supreme Court if Mr. Kauper

asks you to argue them even though in your own personal view it was

a poor policy?

Mr. BORK. I would have no difficulty pointing out to the court that

this is what the law that is established says. If the court asks me the

questions you have asked me about my personal opinion about the

economics of the situation, I would answer precisely the same way I

have answered you.

Senator TUNNEY. Right.

The one thing that I must say from these hearings is that I have

gained the impression that you are prepared to put aside your own

personal philosophy and to argue cases on appeal and to bring cases

up for appeal on the basis of the policy as enunciated by the agencies

and the Attorney General and on the basis of the law as it presently

stands.

Mr. BORK. That is correct, Senator.

Senator TUNNEY. Thank you very much.

Senator HART. This may be repetitious and if it is please advise

me. I was late in arriving. A question has been developed in the Democratic caucus of the Senate which each committee chairman is asked

to direct to nominees in their confirmation hearing. I do not know

whether Chairman Eastland asked it or not before he left but let me

ask both Professor Bork and Dean Sneed: Are you able to commit

to the committee your willingness to appear and testify under conditions of reasonable notice and adjustments of schedules and so on
25

in matters that bear on the subject matter of your department and

responsibilities? Dean Sneed?

Mr. SNEED. Senator, the answer is clearly affirmative, of course,

subject to the conditions that are stated in your question. I personally

am a firm believer in as much exchange as there can be between the

two branches of government, the executive and the legislative, and I

shall do everything that I can to accommodate the interests of the

two branches.

Senator HART. Professor Bork?

Mr. BORK. Senator, I find myself unable to improve upon the dean's

statement, sir.

Senator HART. I am not sure we are directed to narrow that question but—and not just out of curiosity—let me narrow it a little.

President Nixon, and this goes back to the confirmation of Attorney

General Kleindeenst as it related to ITT and executive privilege,

President Nixon had issued an Executive order that described rather

narrowly the circumstances under which an executive agency official

should decline to disclose to Congress information that Congress

sought. As I recall it included as a requirement that he designate

someone on his behalf to designate the material that was subject to

the claim of confidentiality. The Attorney General, as some of us

understood it, went beyond that and asserted a seemingly inherent

right in a department, specifically the Justice Department itself, to

make that kind of judgment, that it had the right to plead silence, so

to speak, without the President's indication that he wanted it treated

as confidential.

Would you agree that the only basis for withholding information

is the protection of the confidentiality of communications involving

the President and that it can be asserted only at the direction of the

President?

Mr. SNEED. Senator Hart, my understanding of this somewhat

murky area of executive privilege leads me to believe that it is somewhat broader than you have stated. I know that is not a wholly satisfactory answer nor am I able to give you an answer which has a very

sharp edge to it. But my reading of the Reynolds case, for example,

leads me to assume that it is somewhat broader. A somewhat broader

view also may be inherent in the Freedom of Information Act.

Senator HART. Professor Bork?

Mr. BORK. It is a field, it is an area, I have not studied, Senator, but

it would seem to me that there may lee occasions when a case in pro-

(Tress would be something that an attorney ought not to talk about

quite aside from the President's involvement.

Senator HART. The answers which both of you have made to the

basic question which the Democratic caucus has directed to be asked,

your willingness to appear and testify, satisfies me.

The Senator from Massachusetts has sent a memorandum which

indicates that he is presiding at a Health, Education, and Welfare

hearing and that if he is not able to get here before we adjourn he

asks that he be given an opportunity to address questions in writing

to you, to the two nominees, which will be communicated before the

end of business today. Is there objection to the issuance of those questions and the receipt of the answers?
26

Senator HRUSKA. No objections.

Mr. BORK. Do I understand the questions will be received today?

Is that correct?

Senator HRUSRA. That is right.

Senator }TART. May I ask that a communication addressed to me

from Clarence Mitchell, Director, Washington Bureau of the National Association for the Advancement of Colored People, be included in the record.

[The document referred to follows:]

WASHINGTON, D.C., JANUARY 15, 1973.

Hon. PHILIP HART,

U.S. Senate, Washington, D.C.:

The NAACP notes that hearings will be held on the nomination of Mr. Robert

H. Bork on Wednesday, January 17. We urge that Mr. Bork be questioned on

whether he supports the transportation of children to public schools when such

transportation is necessary to meet constitutional requirements in school desegregation cases. Increasingly the Department of Justice appears to be seeking to

slow down and even nullify court orders supporting the historic decision of

Brown v. Board of Education. The latest example, of course, is the Department's

attempt to postpone the application of a decision requiring desegregation of the

public schools in Prince Georges County, Maryland. We urge that Mr. Bork be

questioned on whether he will continue the present policy of using the power of

the Federal Government to slow down school desegregation. We are aware of the

fact that a person serving in the Department of Justice may later be considered

for a judicial post either in the Supreme Court or at some other level. On the

basis of Mr. Bork's record to date, we would think that any attempt to place

him in the judicial branch of government should be a subject for extensive hearings. We will appreciate it if this telegram is incorporated in the hearing record.

CLARENCE MITCHELL,

Director, Washington Bureau, NAACP.

Senator HART. If there are no further questions we will adjourn at

the call of the Chair.

Thank you very much.

[Whereupon at 12:05 p.m., the committee adjourned subject to the

call of the Chair.]