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Fights Back When Record Is Attacked : Nominee Boldly Holding to Criticized Legal Views

September 17, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — In his first two days before the Senate Judiciary Committee, Supreme Court nominee Robert H. Bork has boldly refused to budge from the legal stands that have attracted so much criticism.

In fact, in his bid for Senate confirmation to the court, he has provided sharp and detailed explanations for his controversial positions and fought back when senators have criticized his record.

At the same time, he has avoided looking like the right-wing ideologue portrayed by many of his critics. Instead, speaking in a rich baritone voice, Bork has appeared every bit the professor interested in ideas and in legal reasoning.

In defending his harsh criticism in the past of Supreme Court rulings in favor of civil rights, free speech and abortion, Bork insisted that he was upset by the "court's reasoning or lack of reasoning," not by the decisions themselves.

"I am a judge and I am acutely aware that my authority, unlike yours, arises only if I can explain why what I am doing is rooted in the Constitution or in a statute," Bork told the committee.

Bork, who appears comfortable in the spotlight, has occasionally thrown back a harsh question at the senator who asked it.

Committee Chairman Joseph R. Biden Jr. (D-Del.) expressed amazement that Bork could not see a "general right to privacy" in the Constitution's Bill of Rights. In response, Bork suggested that the Senate would vote down a bill giving Americans a general and unlimited right to privacy at home if it provided legal protection for drug use, incest and wife-beating.

"Nobody knows what that right means," Bork said. "The court has not given it definition. That's my only point."

Whether Bork's bold strategy will persuade fence-straddling senators remains uncertain. What is clear is that his in-depth answers contrast sharply with the approach of Chief Justice William H. Rehnquist, who gave only brief replies to accusatory questions from Judiciary Committee Democrats last year during his confirmation hearings as chief justice.

"Let me explain that further, senator," Bork said several times when a panel member criticized his testimony. Perhaps as a consequence, only a few senators--notably Sens. Arlen Specter (R-Pa.) and Patrick J. Leahy (D-Vt.)--sought to press Bork by questioning his replies.

Sen. Howell Heflin (D-Ala.), one of the Judiciary Committee's key undecided members, credited Bork with giving a thorough explanation of his views.

"I think he helped himself," Heflin said Wednesday. "I thought he came across yesterday as being awful dull. Today he was much clearer. It got down to where people could understand him better."

Heflin did not say, however, that he has decided how he will vote on Bork's confirmation.

The main question for the Senate panel, as Sen. Dennis DeConcini (D-Ariz.), another fence-sitter, said Tuesday, is whether Bork would be a fair-minded judge who follows the law or a committed conservative who finds clever reasons to rule the way he chooses.

Bork, who has been a federal appeals court judge for five years, stressed his moderation. He was introduced Tuesday by two symbols of the moderate wing of the Republican Party--former President Gerald R. Ford and Senate Minority Leader Bob Dole of Kansas.

"My philosophy of judging," Bork said in his opening statement, "is neither liberal nor conservative."

In replies to questions, Bork often invoked the names of respected Supreme Court justices from the past, including Potter Stewart, Hugo L. Black and John Marshall Harlan, whose frequent dissents in the 1960s often paralleled Bork's criticisms. Sitting behind him at the witness table was Stewart's widow, a neighbor of the Borks.

Bork sought also to show that his views are not rigid and unchanging. He has, he said, changed the view, expressed in 1971, that the Constitution's free speech clause protects only "explicitly political speech," not scientific or artistic expressions.

Bork said "a gentleman named Scott" called him from a Chicago suburb Wednesday and reminded him of what Benjamin Franklin had said exactly 200 years ago today, the day the Constitution was signed in Philadelphia.

"Having lived long," Franklin said, "I have experienced many instances of being obliged by better information and fuller consideration to change opinions even on important subjects which I once thought right but found to be otherwise."

Bork added: "I have been trying to say that for two days now."

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