In responding to a question by committee Chairman Joseph R. Biden Jr. (D-Del.) about his criticism of the high court's 1948 ruling on such covenants in housing, he said that he was only following the Constitution. The Constitution forbids only discrimination by government, not by private individuals, but the court in that case said that the constitutional protections applied because state officials would have had to enforce the covenants. That interpretation, although it might have beneficial social effects, extended constitutional protections too far, Bork said.
"In that way, any contract action, any tort action can be turned into a constitutional case," he said.
He added: "Some have suggested my reasoning about these cases is eccentric. It is not." Many noted commentators on the Constitution, like Herbert Weschler of Columbia Law School, have disagreed with the court's reasoning in the restrictive covenant case, he said.
Similarly, he said, he does not believe government should restrict an individual's use of birth control devices, as some states did until the Supreme Court struck down such laws in the early 1960s.
But, he said, in striking down those laws, the high court justices did not explain where in the Constitution they found the "right to privacy" that they cited. Unless the Constitution does specifically protect a right, "the judge may not chose" which social values to protect, he said. Nevertheless, Bork said, "It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought."
The intensity of the confirmation proceedings was illustrated by the unusually sharp and personal comments that some of Bork's Senate supporters directed at their opponents on the committee.
Sen. Gordon J. Humphrey (R-N. H.), a staunch Bork backer, for example, said that the dispute has involved "the worst infestation of politics this senator has ever seen" and questioned whether Bork's opponents are "just a bunch of racists or extremists themselves."
And Sen. Charles E. Grassley (R-Iowa) told the hearing: "Some members of the Senate have outflanked each other for the 'honor' of taking the most extreme position--before the first day of hearings."
Bork broke with the precedent of Supreme Court confirmation hearings in which nominees generally are reluctant to discuss their judicial philosophy or to explain how they came to a legal conclusion, contending that it might prejudice their participation in similar cases in the future.
He and his advisers, led by veteran Republican lobbyist Tom Korologos, have indicated that they believe exceptional openness is needed to deal with the unprecedented opposition campaign mounted by civil liberties, women's rights and civil rights organizations.
Bork, in his opening statement, sought to explain how he reasons as a judge.
"The judge's authority derives entirely from the fact that he is applying the law and not his personal values," Bork said. "That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or of their representatives voted for . . . . No one, including the judge, can be above the law."
"The only legitimate way" to find the law, Bork said, "is by attempting to discern what those who made the law intended. . . . Where the words are precise and the facts simple, that is a relatively easy task. Where the words are general, as is the case with some of the most profound protections of our liberties in the Bill of Rights and in the Civil War amendments, the task is far more complex."
Bork said that, "if a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate authority. He or she diminishes liberty instead of enhancing it."
Although Bork stuck to many of the past statements that have made his nomination controversial, he reiterated to the senators that he long ago abandoned his 1963 opposition to a landmark civil rights law that forbade discrimination in hotels, restaurants and other public accommodations.
His opposition at the time was based "on a not uncommon intellectual mistake" of carrying free market ideas into social policy, he told Kennedy.
Bork noted also that he no longer believes, as he wrote in 1971, that the First Amendment's protections of free speech and the press should be limited only to explicitly "political" speech. Science, literature and other forms of "moral discourse" are equally deserving of constitutional protection, he testified.
Although saying that he believes previous court rulings should be respected highly, Bork cited the Supreme Court's 1954 ruling in Brown vs. Board of Education--which overturned an 1896 ruling and banned racial segregation in public schools--as an example of when "a venerable precedent can and should be overruled."
The 1896 ruling allowed "separate but equal" schools. Reversing it, he said, "was clearly correct and represents perhaps the greatest moral achievement of our constitutional law."
Constitutional law "will evolve as judges modify doctrine to meet new circumstances and new technologies," Bork said. As a result, the First Amendment's guarantee of freedom of the press is today applied to radio and television and the Fourth Amendment's protection against unreasonable searches is applied to electronic surveillance, he said.