ACLU Takes Rare Stand, Opposes Bork

After revising its policy of not taking stands on Supreme Court appointments, the American Civil Liberties Union on Monday launched a “major national campaign” to deny confirmation to Judge Robert H. Bork, branding him “an extremist . . . outside the mainstream of conservative judicial philosophy.”

In urging Bork’s rejection by the Senate, the ACLU issued a 47-page study of his judicial opinions, speeches, academic and popular writings, congressional testimony and interviews, concluding that his views would radically alter civil liberties and the structure of U.S. government.

“As Judge Bork interprets the Constitution, few rights are shielded from the majority’s judgments,” the ACLU study said. If Bork is confirmed and his views prevail, “the majority in each state could impose its moral values on the private lives and decisions of all citizens. Individual liberty would have a radically different meaning in each state.”

It is only the second time that the ACLU has sought to defeat a Supreme Court nominee. The first was its unsuccessful 1971 effort against the confirmation of William H. Rehnquist.

The campaign against Bork was begun after the ACLU’s board voted Sunday to make Supreme Court nominations an exception to its policy of not endorsing or opposing candidates for elective or appointive office; under the new policy, the ACLU will oppose high court nominees whenever at least 60% of the board votes to do so.

In taking its action, the ACLU said that it believes the Senate, when weighing a Supreme Court nomination, should examine the nominee’s judicial philosophy as well as qualifications.

The issue has been a major point of contention between Bork’s backers, some of whom contend that the Senate should avoid such questions, and his opponents, who argue that the Senate should consider them, especially when the nominee holds a crucial swing vote on key issues.

“The Senate, in exercising its constitutional responsibilities, has an obligation to examine a nominee’s judicial philosophy and to require a nominee to explain that philosophy in hearings on the nomination,” the ACLU resolution stated.

“The ACLU will urge the Senate to reject any nominee whose record demonstrates a judicial philosophy that would fundamentally jeopardize the Supreme Court’s critical and unique role in protecting civil liberties in the United States,” the organization said.

Norman Dorsen, ACLU national president, said votes of 47 to 16 to change the endorsement policy and 61 to 3 to oppose Bork showed that the board had “some question” about revising its policy but that “there was almost no question” on the Bork issue.

Dorsen, who served as a law clerk to the late Justice John Marshall Harlan, a leading judicial conservative, disputed as “absolutely false” an attempt by the White House to picture Bork as holding the same philosophy as Harlan, Felix Frankfurter and Justice Lewis F. Powell Jr., whose seat Bork would fill.

In contending that Bork is “more radical than conservative,” Dorsen told a press conference at the ACLU’s Washington office overlooking the Supreme Court: “He is certainly well outside of the mainstream of conservative judicial philosophy that governed decisions of justices like Harlan, Frankfurter or Powell.”

Ira Glasser, the ACLU’s executive director, said the organization and its local affiliates across the country plan to publicize Bork’s views as widely as possible. The consequences of these views “would arouse fear and opposition in most Americans,” he contended.