While senators in Washington consider the nomination of Judge Robert Bork, two scholars at NIU’s College of Law evaluated the Supreme Court nominee’s record on important legal issues.

College of Law Dean Leonard Strickman, who had Bork for an anti-trust instructor at Yale Law School, said his mentor’s confirmation would provide the U.S. Supreme Court with one of its intellectually strongest members.

Strickman also said Bork should not be denied confirmation merely because he is a conservative, but questioned the primary basis for much of his Constitutional analysis, the theory of original intent.

“First, in many instances, it is impossible to discern a unitary intent from a heterogenous body such as the Constitutional Convention.”

Strickman also said the theory of original intent prevents the redefinition of constitutional values as changes occur in our society, and thus, defeats the “adaptive flexibility” the framers sought to build into the Constitution.

NIU law Professor Larry Schlam said, “Bork has unquestionable intellectual strength and there’s no reason to doubt his personal integrity, but there are serious problems with his lack of intellectual consistency and, therefore, with his political neutrality.

“It is a bad omen to be able to look at a judge’s voting record and see such a clear and absolute predictability depending on the parties involved. To the extent corporations will always win, regardless of whether deference to, or scrutiny of, legislative or administrative rulings are required, individuals are infrequently or not at all protected against abusive corporate action,” Schlam said.

Schlam, a constitutional law expert, also said Bork’s application of the theory of original intent has been especially inconsistent. “In some cases, he has conceded that original intent is a matter of intended principle.

“For example, he accepts the correctness of Brown vs. Board of Education (the Supreme Court case which ended racial segregation in public schools), yet he has, on other occasions, defined original intent only in terms of the specific situations contemplated by the founders.

“For example, the privacy cases, such as Roe vs. Wade, (the Supreme Court case which legalized abortion), are an unconstitutional deviation from original intent in his opinion.”

Both Schlam and Strickman expressed concerns over Bork’s views on equal protection. “Bork has said the Equal Protection clause should only protect blacks and other ethnic minorities; however, his reading does not protect the rights of women or other disadvantaged classes,” Schlam said.

Strickman said Bork’s interpretation of the Equal Protection clause could deny meaningful protection to aliens, illegitimates and the handicapped.

Schlam also said Bork could make a positive contribution in the area of procedural due process. “He could bring new ways of reasoning where governmental deprivation of liberty or property interests are at stake because that area is not very well thought through at present.

“However, his views of standing are very restrictive and this could deny some citizens access to the courts.”