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Confirmation Hearings to Open : Bork: Gift for Logic Tied in a Paradox

September 13, 1987|DAVID LAUTER and DAVID G. SAVAGE | Times Staff Writers

WASHINGTON — The young lawyer remembers the first meeting vividly. From the distinguished jurist's writings, he had formed a mental picture of someone "old," perhaps, and "severe." Instead, the man at the door was lively and slightly rotund. His clothes and beard were both a little askew. There was a loud laugh and an unfeigned friendliness in the voice that called out: "Hi, I'm Judge Bork."

"I was expecting something else," the young lawyer recalled recently.

Robert Heron Bork, President Reagan's Supreme Court nominee, who goes before the Senate Judiciary Committee on Tuesday to begin what promises to be a long and bitter confirmation battle, is a man who defies people's expectations.

Deep-Set Convictions

Americans tend to distrust people--whether from the political left or right--who have strong ideological commitments, for fear that doctrinaire attitudes may get in the way of human feelings and common sense. Bork indeed has deep-set ideological convictions. On philosophical grounds, he opposed the landmark federal Civil Rights Act of 1964, for example, and attacked a host of Supreme Court decisions protecting and extending the civil rights, civil liberties and personal privacy of individuals.

Yet Bork the man does not fit the stereotype of the political zealot, of hard-eyed ideological rigidity. Where the ideologue is expected to be cold, distant, disciplined, unfeeling, Bork in person is warm and outgoing.

The resulting puzzle may become a central element in the coming struggle over his elevation to the Supreme Court. Given the closely divided nature of the present bench and the unusually sensitive issues now before it, the question of what kind of justice he might turn out to be is critical.

Opposite Directions

In Bork's case, the two factors normally used to make such an assessment--the nominee's past work and the man himself--seem to point in opposite directions.

Richard M. Nixon, Bork jokes, was attracted to his writing--particularly an article in the New Republic magazine in 1968 praising Nixon's candidacy for President--but he stared distrustfully at Bork's beard when the two first met, seemingly afraid he would discover a hippie in disguise.

Conversely, when Bork's nomination to be solicitor general came before the Senate Judiciary Committee in 1973, the late Sen. Philip A. Hart (D-Mich.), a liberal member of the panel, had read many articles by the nominee and expected to grill him critically. But after listening to Bork's jovial answers, Hart gave up. "Really," he confessed, "your answer disarms me."

Those who know Bork--including law clerks, students, fellow judges, faculty members at Yale and the University of Chicago and friends from his youth in Pittsburgh--describe:

--A young man interested in socialism but, according to a contemporary, "not as a reformer . . . he was interested in the ideas."

--A conservative law professor who stated his beliefs--first as a libertarian believer in judicial activism and then as a convert to the doctrine of judicial restraint--in strong, cutting language but who seldom took the time to explain them in detail.

--A Justice Department official who devoted tremendous personal effort to cases he deemed important but who was criticized by the Supreme Court for sloppiness on meeting deadlines.

--A judge who charmed colleagues with his amiability but often surprised them by taking strong, sometimes divisive positions that sparked arguments and slowed the resolution of cases.

Restless Intellect

He is a man of restless intellect and shirt-sleeve work habits, easily bored by routine and detail, better at poking holes in others' arguments than at building his own, a theorist skeptical of theories and a lawyer doubtful of the law's ability to solve society's problems, a debater who at times dismisses opponents' points with contempt, only to change his mind and accept them later.

"Much of my career has been spent in taking back what I said before," he told an audience last year at a conservative symposium staged by Stanford Law School.

Bork's strength--a questing intellect that seizes upon ideas and carries them through to logical conclusions--has been the obverse of his great weakness. Even friends concede that at times he has been willing to follow logic to the point of what one friend called "moral blindness"--when, for example, he opposed the Civil Rights Act on the grounds that it would decrease the freedom of those who want to discriminate.

Turned From Socialism

Friends point to two institutions--and two men who epitomized them--as crucial to understanding who Bork is and how he got that way. The institutions were the University of Chicago and the Supreme Court of the 1960s. The men were Aaron Director, a Chicago professor of law and economics who turned Bork from socialism to libertarianism, and Earl Warren, whose moralistic approach to the law came to exemplify for Bork the dangers of judicial activism.

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