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Judiciary Committee Hearings on Judge Robert Bork

September 20, 1987

One of the arguments used in the debate over Bork's nomination to the Supreme Court exceeds all others in intellectual dishonesty. That is the claim of Bork's supporters that he is distinguished by his belief in judicial restraint, the proposition that a judge should decide fundamental questions of law by reference to the Constitution and that when the Constitution offers no guidance a judge should defer to the legislature.

This is a straw-man argument extraordinaire . It implies that opponents of Bork believe the judiciary should make decisions not supported by the Constitution; that they believe the judiciary ought to seize the law-making powers of Congress and the people. No serious lawyer, judge or politician of the right or left advocates such a position. A judge's quandary is never about what he should do if and when he has determined the meaning of the Constitution. That is beyond question. His quandary, rather, concerns when the Constitution speaks and what it means.

DANIEL SLOCUMHINERFELD

Los Angeles

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