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Bork to Break Precedent With Depth of Replies

September 15, 1987|DAVID LAUTER and RONALD J. OSTROW | Times Staff Writers

WASHINGTON — When he appears before the Senate Judiciary Committee today, Supreme Court nominee Robert H. Bork plans to go further in his willingness to discuss legal philosophy and reasoning than any other candidate in the 60 years that the committee has questioned potential high court justices.

Bork will go "right up to the point of saying 'I will vote to repeal' or 'I will vote against repealing' " specific high court precedents, a close associate who has helped Bork prepare for the hearings said Monday.

Supreme Court nominees almost universally have refused to answer such questions, saying that their replies would compromise their independence as judges. Bork, however, does not have the luxury of refusing to respond.

A Deciding Factor

Because of Bork's long and contentious record of public statements on controversial issues, members of the committee have been spending weeks preparing to ask him in detail about his views. And, because he will go into the hearings with a public and Senate evenly divided on his nomination, Bork's handling of the sensitive questions is likely to be the deciding factor in whether he becomes the next justice to sit on the highest court in the land.

"Washington is, I hope, about to have a great debate," President Reagan said Monday in a speech to the National Alliance of Business.

Confirmation of Bork, which would reshape the ideological balance of the court by giving it a strong conservative majority, would represent an enormous White House achievement whose impact could last into the next century. Moreover, it would hand Reagan a significant victory that would help offset devastating losses from the Iran- contra affair at a crucial time when his advisers are trying to shape his historical image in the waning months of his presidency.

For now, activists on both sides rate the Bork debate a tossup. But they believe that, by the time Bork's testimony concludes Thursday as expected, the fight may have been decided.

Not only will senators be watching Bork's explanations, they will also be watching his demeanor, trying to decide for themselves whether he is a fair and open-minded conservative legal scholar, as his supporters say, or the ideological zealot his opponents depict.

"It all depends on how he handles himself," a senior adviser said to one key undecided senator. "There's a fine line between a smart man and a smart ass."

Friends of Bork, including former President Gerald R. Ford, are confident that he will be able to defuse the potential dangers of the interrogation. He is "his own best advocate," Sen. Orrin G. Hatch (R-Utah) said. Another close associate agreed, saying that Bork is "our secret weapon. When he starts talking, people will see he doesn't rant."

Opponents are equally confident that Bork's testimony will carry the day for them. "The more the people hear about the record of Robert Bork, the more they understand and the more they don't like it," said Kate Michelman, executive director of the National Abortion Rights Action League, which has played a major role in opposing the nomination.

Caught in the middle of the debate is the American public, which has been subjected to a media blitz that will reach its peak today when several television networks air large parts of Bork's testimony. NBC and ABC plan to broadcast the session live, starting at 11 a.m., with CBS beginning its coverage at 12:30 p.m. PBS and National Public Radio both plan gavel-to-gavel coverage, Judiciary Committee spokesman Pete Smith said.

"What is such a historic occasion about this is that people for the first time are going to hear a prospective Supreme Court justice explain his reasoning--and not in legal, technical words," said a source who has helped Bork prepare.

So important is the issue to the White House that Administration officials have met three times with Bork for informal strategy discussions and one mock committee session to help prepare him for the hearings, including one meeting at the White House attended by presidential Chief of Staff Howard H. Baker Jr.

But the sessions "weren't the usual 'murder boards' that we've done for other (nominees) but were more like bull sessions," said one participant who helped prepare Chief Justice William H. Rehnquist for his hearings last year. "After all, this was not some guy f1919905056before and says, 'What's a hearing?' Besides, he knows a lot more than those of us who could ask questions."

Mostly, Bork has been staying home, reading his past articles and reviewing details of the main events in his life--like his firing of Watergate special prosecutor Archibald Cox. Along with extensive questioning on his civil rights views and his positions on the constitutional protections of privacy, Watergate is expected to be one of the chief areas of questioning in the hearings.

Bork and the committee have plowed the Watergate ground twice before: in November, 1973, only two weeks after Cox's discharge, and again in 1982, when the panel approved Bork's nomination to the U.S. Circuit Court of Appeals, where he now sits.

Six of the panel's current Democratic members, including Sen. Joseph R. Biden Jr. of Delaware, now chairman, were Judiciary Committee members five years ago when Bork made his most extensive comments on Watergate.

At that session, the question was pursued only by Sen. Max Baucus (D-Mont.). But Democrats indicate that they will fully explore the question again, partly to assess the White House claim that Bork, after firing Cox, moved immediately to ensure that the Watergate Prosecution Force "would remain intact and independent."

The White House contends also that it was Bork who convinced former President Richard M. Nixon that Cox should be replaced with Leon Jaworski and that Jaworski should be guaranteed full independence.

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