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Bork Assures Senators He Respects Precedent : Testifies He Was Acting as 'Theorist' in Criticizing High Court Decisions; Unsure on Abortion Issue

September 16, 1987|RONALD J. OSTROW and DAVID LAUTER | Times Staff Writers

WASHINGTON — Judge Robert H. Bork, testifying as hearings opened on his Supreme Court nomination, said Tuesday that he had been acting as "legal theorist" in his criticisms of key high court decisions--free of the "great respect to precedent" he pledged would guide him if the Senate confirms his nomination.

In seeking to reassure critics who contend that his confirmation would lead to wholesale overturning of Supreme Court rulings on abortion and civil rights, Bork told the Senate Judiciary Committee that "a judge must give great respect to precedent . . . overruling should be done sparingly and cautiously."

Precedents 'Embedded'

When asked specifically about abortion, Bork said he did not know whether he would vote to overturn the high court's landmark 1973 decision making the procedure legal in the nation. He believes the decision was wrong, he said, but he recognizes that some precedents become "so deeply embedded" in the law that they cannot be undone.

But, for the most part, Bork, accompanied by members of his family and Administration officials, refused to soften his severe assessments of court rulings as he parried the pointed questions of committee members.

His statements failed to mollify critics, who repeatedly pointed out his strong objections to the "right to privacy" that courts have interpreted in the Constitution. Such decisions on the issue of privacy are "utterly inadequate," Bork told the senators, and the abortion decision, in particular, "contains almost no legal reasoning."

At the same time, Bork's responses to the questions so far--all asked by senators who already have taken positions for or against him--appeared not to have swayed the undecided members of the committee, who hold the key to the nomination's fate.

"He didn't go deeply enough," said Sen. Dennis DeConcini (D-Ariz.), one of the uncommitted senators.

"He's giving good answers," said another, Sen. Howell Heflin (D-Ala.). But, he added: "We've got a lot of concerns."

DeConcini's Position

Earlier, summarizing the views of the other undecided members of the committee, DeConcini said in his opening statement that, before voting for Bork, "I must be satisfied that in the guise of what you represent . . . judicial restraint, that you, Judge Bork, are not a conservative judicial activist, bent on imposing your own political philosophy on the court and on this nation."

Both Bork's supporters and opponents on the panel stressed the "historical" nature of the nomination, which many believe could change the ideological balance of the court for decades.

The high stakes were illustrated by the appearance of former President Gerald R. Ford, who broke with precedent to introduce the nominee in the jammed Senate Caucus Room--scene of the Iran- contra hearings this summer and the Senate Watergate hearings in 1973.

'Uniquely Qualified'

Ford said that his Administration and the nation "benefited enormously" from Bork's service as solicitor general during his presidency, and he added that Bork "is uniquely qualified to sit on the U.S. Supreme Court."

Bork, seldom smiling, responded to the senators' questions without notes and seemed fully in control as he explained his controversial statements as a lawyer and Yale University professor.

But, even before he began what is expected to be at least three days of testimony, some of his sharpest critics on the committee made clear in opening statements that their opposition is unyielding.

"The strongest case against this nomination is made by the words of Mr. Bork himself," Sen. Edward M. Kennedy (D-Mass.) said. "In Robert Bork's America, there is no room at the inn for blacks and no place in the Constitution for women. And, in our America, there should be no seat on the Supreme Court for Robert Bork."

Sen. Howard M. Metzenbaum (D-Ohio) was equally disapproving, saying that Bork "categorically rejects any constitutional right of privacy. He believes the government has a right to regulate the family life--and the sex life--of every American. He believes the government can make it a crime for married adults to use birth control."

Sonorous Tones

Bork, speaking in deep, sonorous tones, repeatedly sought to distinguish between his role as a teacher of law, when he made some of his most caustic comments about court rulings, and his role as a jurist.

"In a classroom, nobody gets hurt," Bork said in an exchange with Sen. Strom Thurmond (R-S. C.), one of his supporters. "In a courtroom, somebody always gets hurt."

He tried also to stress the distinction between his disagreement with the legal reasoning used by the court in reaching a decision and the results of that decision.

For example, Bork said, "I have never been for racially restrictive covenants."

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