October 23, 1987 CONGRESSIONAL RECORD—SENATE 29121

These are grand terms—terms that

to this day both stir and confound us.

But let me quote from one of the most

distinguished witnesses to appear

before the committee: Shirley Hufstedler, a former Court of Appeals

Judge and the Secretary of Education

under President Jimmy Carter. This is

what Judge Hufstedler had to say

about these terms.

They are words of passion. They are

words of dedication. They are words that

cannot be drained of their emotional content. * * * None can be cabined without destroying the soul of the Constitution and its

capacity to encompass changes in time,

place and circumstance.

From these "words of passion"

comes a tradition of Supreme Court

jurisprudence that has recognized fundamental principles of liberty. I have

touched upon these principles before.

They have been expressed in different

ways, but we understand the message

they convey:

The right to be let alone.

Ordered liberty.

Postulates of respect for the liberty of the

individual.

Values deeply rooted in this Nation's tradition.

This is how the Supreme Court has

defined concepts as old as the Magna

Carta. This is how Justices Brandeis,

Frankfurther, Harlan, and Powell

have approached the Constitution,

among many others— this is how most

Americans have come to approach the

Constitution.

The writings and testimony of Judge

Bork show him to be at odds with this

tradition and history. Indeed, had his

philosophy been the governing one for

this country, the Supreme Court

would not have served—as we all know

it has—as the last bulwark of protection for our rights when the Government has unduly intruded into the

realm of individual liberty.

Senator Sam Ervin our late colleague, was fond of quoting an eloquent educator about the ties between

the Magna Carta, the English Petition

of Right, the Declaration of Independence and the U.S. Constitution—

These are the great documents of history.

Cut them, and they will bleed with the

blood of those who fashioned them and

those who have nurtured them through the

succeeding generations.

Can the Senate take the risk of confirming to the Supreme Court someone who does not recognize certain

fundamental rights that are imbedded

in the fiber of our Constitution—that

are embedded in the fiber of our

Nation?

I think the answer—after detailed

and extensive hearings, after a serious

debate on the floor of the U.S.

Senate—is clear.

The Nation cannot take that risk.

I urge the rejection of Judge Robert

H. Bork to be an Associate Justice of

the U.S. Supreme Court.

CONCLUSION

Finally, let me add a personal note.

There has been much talk about a

smear campaign, about a personal

attack on Judge Bork, about the

damage that has been done to his

honor and his integrity, and even

about how people may be gloating or

joyfully congratulating themselves

about Judge Bork's defeat.

This Senator will have none of this.

Throughout these proceedings, I have

respected Judge Bork's honor and I

have believed in his integrity. I continue to do so.

There can be no joy for this Senator

in defeating a person of Judge Bork's

personal caliber. Although we try not

to take defeats of this kind personally—and the people in this body know

the anguish of defeat well—judicial

nomination battles always involve just

one person at a time, and they can

become intensely personal to the

nominee. I find no joy in this situation.

I do have a solemn responsibility as

a U.S. Senator, and I have attempted

to discharge it. I could not shrink from

the conflict in deep constitutional

principle that I have with Judge Bork.

But let me make this clear: I do not

consider what has happened here to

count against Judge Bork's honor and

integrity, and I hope no one in the

country does. Still, it is with a heavy

heart for the man and his family that

I urge my colleagues to vote against

Robert Bork, for I suspect this is a

post he wanted very much, and I fear

others might misunderstand the kind

of judgment that this body is making.

For Judge Bork and his family, I ask

that no one make that mistake.

And to Judge Bork and his family, I

can only wish them well.

Mr. President, I can see you are

about to lift your gavel and I am probably wearing on the patience of my

colleagues, but I congratulate all those

who have chosen to engage in the

debate on principle and hope and pray

the President of the United States

sends us a woman or a man next upon

whom we can all be in agreement.

I yield the floor.

The PRESIDING OFFICER. The

Senator's time has expired.

The Senator from South Carolina

has a minute.

Mr. THURMOND. Mr. President, I

would like for the Presiding Officer to

admonish the audience in the galleries

there will be no outburst when the

outcome is announced.

The PRESIDING OFFICER. The

Senator from South Carolina is correct. The Chair advises those in the

galleries expressions of approval or

disapproval are not permitted and will

not be tolerated. Those in the galleries

are asked to refrain from audible conversations during the calling of the

roll and the vote is announced.

The Senator from South Carolina

has approximately 45 minutes.

Does he yield back his time?

Mr. THURMOND. I yield back the

remainder of my time.

The PRESIDING OFFICER. The

Senators yield back the time. All time

is gone.

The question is, Will the Senate

advise and consent to the nomination

of Robert H. Bork, of the District of

Columbia, to be an Associate Member

of the Supreme Court.

Mr. WALLOP. Mr. President, I ask

for the yeas and nays.

The PRESIDING OFFICER. Is

there a sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

The PRESIDING OFFICER. On

this question the yeas and nays have

been ordered, and the clerk will call

the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. BYRD. Mr. President, I ask that

order be maintained in the Senate,

that Senators remain at their seats

and that the clerk repeat the responses after each response.

The PRESIDING OFFICER. Regular order will be followed.

The clerk will continue calling the

roll.

The assistant legislative clerk resumed and concluded the call of the

roll.

The result was announced—yeas 42,

nays 58, as follows:

[Rollcall Vote No. 348 Ex.]

YEAS-42

Armstrong

Bond

Boren

Boschwitz

Cochran

Cohen

D'Amato

Danforth

Dole

Domenici

Durenberger

Evans

Gam

Gramm

Adams

Baucus

Bentsen

Biden

Bingaman

Bradley

Breaux

Bumpers

Burdick

Byrd

Chafee

Chiles

Conrad

Cranston

Daschle

DeConcini

Dixon

Dodd

Exon

Ford

Grassley

Hatch

Hatfield

Hecht

Heinz

Helms

Hollings

Humphrey

Karnes

Kassebaum

Kasten

Lugar

McCain

McClure

NAYS-58

Fowler

Glenn

Gore

Graham

Harkin

Heflin

Inouye

Johnston

Kennedy

Kerry

Lautenberg

Leahy

Levin

Matsunaga

Melcher

Metzenbaum

Mikulski

Mitchell

Moynihan

Nunn

McConnell

Murkowski

Nickles

Pressler

Quayle

Roth

Rudman

Simpson

Stevens

Symms

Thurmond

Trible

Wallop

Wilson

Packwood

Pell

Proxmire

Pryor

Reid

Riegle

Rockefeller

Sanford

Sarbanes

Sasser

Shelby

Simon

Specter

Stafford

Stennis

Warner

Weicker

Wirth

The PRESIDING OFFICER. On

Rollcall No. 348, the nomination of

Robert H. Bork, the yeas are 42, the
29122 CONGRESSIONAL RECORD—SENATE October 23, 1987

nays are 58, the nomination is not confirmed.

Mr. BYRD. I move to reconsider

vote by which the nomination was rejected.

Mr. DOLE. I move to lay that

motion on the table.

The motion to lay on the table was

agreed to.

The PRESIDING OFFICER. The

President will be immediately notified

of the Senate's action.

LEGISLATIVE SESSION

MILITARY CONSTRUCTION APPROPRIATIONS, FISCAL YEAR

1988

The PRESIDING OFFICER. Under

the previous order, the Senate will

now return to legislative session to

consider H.R. 2906, which the clerk

will report.

The legislative clerk read as follows:

A bill (H.R. 2906) making appropriations

for military construction and for the Department of Defense for the fiscal year

ending September 30, 1988, and for other

purposes.

The Senate proceeded to consider

the bill which had been reported from

the Committee on Appropriations,

with amendments, as follows:

(The parts of the bill intended to be

stricken are shown in boldface brackets, and the parts of the bill intended

to be inserted are show in italics.)

H.R. 2906

Be it enacted by the Senate and House of

Representatives of the United States of

America in Congress assembled, That the

following sums are appropriated, out of any

money in the Treasury not otherwise appropriated, for the fiscal year ending September 30, 1988, for military construction functions administered by the Department of

Defense, and for other purposes, namely:

MILITARY CONSTRUCTION, ARMY

(INCLUDING RESCISSIONS)

For acquisition, construction, installation,

and equipment of temporary or permanent

public works, military installations, facilities, and real property for the Army as currently authorized by law, and for construction and operation of facilities in support of

the functions of the Commander-in-Chief,

[$908,160,000] $974,630,000, to remain

available until September 30, 1992: Provided, That of this amount, not to exceed [

$133,120,000] $120,120,000 shall be available

for study, planning, design, architect and

engineer services, as authorized by law,

unless the Secretary of Defense determines

that additional obligations are necessary for

such purposes and notifies the Committees

on Appropriations of both Houses of Congress of his determination and the reasons

therefor: Provided further, That of the

funds appropriated for "Military Construction, Army" under Public*

 Law 98-473,

$6,800,000 is hereby rescinded: Provided further, That of the funds appropriated for

"Military Construction, Army" under Public

Law 99-173, $28,000,000 is hereby rescinded.

MILITARY CONSTRUCTION, NAVY

(INCLUDING RESCISSIONS)

For acquisition, construction, installation,

and equipment of temporary or permanent

public works, naval installations, facilities,

and real property for the Navy as currently

authorized by law, including personnel in

the Naval Facilities Engineering Command

and other personal services necessary for

the purposes of this appropriation,

[$1,380,855,000] $1,505,072,000, to remain

available until September 30, 1992: Provided, That of this amount, not to exceed

[$148,655,000] $130,000,000 shall be available for study, planning, design, architect

and engineer services, as authorized by law,

unless the Secretary of Defense determines

that additional obligations are necessary for

such purposes and notifies the Committees

on Appropriations of both Houses of Congress of his determination and the reasons

therefor: Provided further, That of the

funds appropriated for "Military Construction, Navy" under Public Law 98-473,

$6,800,000 is hereby rescinded: Provided further, That of the funds appropriated for

"Military Construction, Navy" under Public

Law 99-173, $19,400,000 is hereby rescinded.

MILITARY CONSTRUCTION, AIR FORCE

(INCLUDING RESCISSIONS)

For acquisition, construction, installation,

and equipment of temporary or permanent

public works, military installations, facilities, and real property for the Air Force as

currently authorized by law,

[$1,115,950,000] $1,179,014,000, to remain

available until September 30, 1992: Provided, That of this amount, not to exceed

[$121,036,000] $115,000,000, shall be available for study, planning, design, architect

and engineer services, as authorized by law,

unless the Secretary of Defense determines

that additional obligations are necessary for

such purposes and notifies the Committees

on Appropriations of both Houses of Congress of his determination and the reasons

therefor: Provided further, That of the

funds appropriated for "Military Construction, Air Force" under Public Law 98-473,

$6,300,000 is hereby rescinded: Provided further, That of the funds appropriated for

"Military Construction, Air Force" under

Public Law 99-173, $18,500,000 is hereby rescinded; Provided further, That none of the

funds appropriated for planning, design, or

construction of military facilities or family

housing may be used to support the relocation of the 401st Tactical Fighter Wing from

Spain to another country.

MILITARY CONSTRUCTION, DEFENSE AGENCIES

(INCLUDING TRANSFER OF FUNDS)

(INCLUDING RESCISSIONS)

For acquisition, construction, installation,

and equipment of temporary or permanent

public works, installations, facilities, and

real property for activities and agencies of

the Department of Defense (other than the

military departments), as currently authorized by law [$564,886,000] $597,865,000, to

remain available until September 30, 1992:

Provided, That such amounts of this appropriation as may be determined by the Secretary of Defense may be transferred to such

appropriations of the Department of Defense available for military construction as

he may designate, to be merged with and to

be available for the same purposes, and for

the same time period, as the appropriation

or fund to which transferred: Provided further, That of the amount appropriated, not

to exceed [$62,800,000] $55,000,000 shall be

available for study, planning, design, architect and engineer services, as authorized by

law, unless the Secretary of Defense determines that additional obligations are necessary for such purposes and notifies the

Committees on Appropriations of both

Houses of Congress of his determination

and the reasons therefor Provided further,

That of the funds appropriated for "Military Construction, Defense Agencies" under

Public Law 98-473, $1,900,000 is hereby rescinded: Provided further, That of the funds

appropriated for "Military Construction,

Defense Agencies" under Public Law 99-173,

$5,300,000 is hereby rescinded.

NORTH ATLANTIC TREATY ORGANIZATION

INFRASTRUCTURE

(INCLUDING RESCISSION)

For the United States share of the cost of

North Atlantic Treaty Organization Infrastructure programs [for the acquisition of

personal property,] for the acquisition and

construction of military facilities and installations (including international military

headquarters) and for related expenses for

the collective defense of the North Atlantic

Treaty Area as authorized in military construction Acts and section 2806 of title 10,

United States Code, [$376,000,000]

$386,000,000, to remain available until expended: Provided, That of the funds appropriated for "North Atlantic Treaty Organization Infrastructure" under Public Law 99-

173, $8,000,000 is hereby rescinded; Provided

further, That, of the funds appropriated in

this Act for NATO infrastructure, no more

than 35 per centum may be utilized to support non-construction activities.

MILITARY CONSTRUCTION, ARMY NATIONAL

GUARD

(INCLUDING RESCISSION)

For construction, acquisition, expansion,

rehabilitation, and conversion of facilities

for the training and administration of the

Army National Guard, and contributions

therefor, as authorized by chapter 133 of

title 10, United States Code, and military

construction authorization Acts,

[$158,052,000] $194,925,000, to remain

available until September 30, 1992: Provided, That of the funds appropriated for

"Military Construction, Army National

Guard" under Public Law 99-173, $2,500,000

is hereby rescinded.

MILITARY CONSTRUCTION, AIR NATIONAL

GUARD

(INCLUDING RESCISSIONS)

For construction, acquisition, expansion,

rehabilitation, and conversion of facilities

for the training and administration of the

Air National Guard, and contributions

therefor, as authorized by chapter 133 of

title 10, United States Code, and military

construction authorization Acts,

[$126,475,000] $165,716,000, to remain

available until September 30, 1992: Provided, That of the funds appropriated for

"Military Construction, Air National

Guard" under Public Law 98-473, $200,000 is

hereby rescinded: Provided further, That of

the funds appropriated for "Military Construction, Air National Guard" under Public

Law 99-173, $3,300,000 is hereby rescinded.

MILITARY CONSTRUCTION, ARMY RESERVE

(INCLUDING RESCISSION)

For construction, acquisition, expansion,

rehabilitation, and conversion of facilities

for the training and administration of the

Army Reserve as authorized by chapter 133

of title 10, United States Code, and military

construction authorization Acts,

$95,100,000, to remain available until September 30, 1992: Provided, That of the

funds appropriated for "Military Construction, Army Reserve" under Public Law 99-

173, $1,800,000 is hereby rescinded.