Enter Professor Bork

Robert Heron Bork is not used to going unnoticed. Possessor of a jaunty red beard and a formidable conservative intellect, he was a natural standout among his faculty colleagues at Yale Law School, a longtime seat of liberal legal scholarship. He moved to Washington this summer as Richard Nixon's new Solicitor General, but so many other notable law professors swirled through town to advise on Watergate proceedings that Bork scarcely raised a ripple.

Now that is about to change. The Supreme Court begins its fall term on Oct. 1, and Solicitor General Bork is the man who will talk to the Justices on behalf of the U.S. Government. As such, he can focus the court's attention by helping to choose which cases the Federal Government asks the Justices to hear as well as by the line of argument he decides to make. In addition, in his role as supervisor of U.S. appeals at every level, he controls the flow of cases throughout the appellate system.

The most dramatic case heading for the court is, of course, the controversy over President Nixon's tapes. But Bork will not be directly involved because the Justice Department's special Watergate prosecutor, Archibald Cox, is arguing against Presidential Lawyer Charles Alan Wright. Thus there is no single Government position for Bork to maintain. Even so, he will, in effect, be heard. He has entered a suit filed by a Ralph Nader group seeking a variety of White House working papers relating to the raising of milk price supports shortly after large campaign contributions were made by dairymen. Bork opposed the release of such papers, not on the ground of separation of powers or mere Executive privilege, as is being argued by the White House on the tapes case. Instead, he cited a case in which the N.A.A.C.P. was permitted to preserve the privacy of its membership lists because the Supreme Court concluded that releasing the lists would have a "chilling effect" on the members' First Amendment rights of free speech and free association. Release of discussions on the milk case, said Bork, would compromise the First Amendment rights of White House personnel. Bork has discussed his inventive alternative approach with the President's attorneys, and it may turn up as part of their tapes argument.

Bork is an enthusiastic Nixon supporter, having publicly backed him in 1968 and 1972. "I like him. He's an intellectual politician," says the law professor. But he readily admits that "in some areas I'm the Government's hired gun. I'd enforce a policy even though I might disagree with it." Indeed, as a scholar he has criticized the Nixon Administration's antitrust policy for not being sufficiently laissez-faire, but he is fully prepared to argue in court against his own academic position, if necessary.

Not Timid. An expert in constitutional as well as antitrust law, Bork says he was once a "conventional New Deal liberal," but began changing his mind under the influence of conservative professors while he was at the University of Chicago Law School. Graduated in 1953 after being managing editor of the Law Review, he was hired by a top Chicago firm and seemed well on his way to a lucrative position when he became "bored practicing law." He had nearly decided to go into journalism as a FORTUNE writer when Yale Law offered a teaching position. After ten years in New Haven, Bork had settled happily into the standard scholarly clutter of his office, a roomy faded yellow stucco house with his wife and three children, a 1968 Volvo to get back and forth between them, and faint daydreams of some day chucking it all for isolation in Vermont. Then one evening, in the middle of a martini and a TV episode of The Avengers, Washington called.

Bork's first official move after taking the Solicitor General's post served notice that his brand of conservatism is neither predictable nor timid. Like 15 other states, Georgia has filed suit to overturn presidential impoundments of funds that were authorized by Congress. Georgia wants the Supreme Court Justices to hear the case directly--without the delays of the appeals procedure.* Bork might well have opposed such a move, preferring to let the question of presidential power languish for a while in lower courts. Instead last month, Bork agreed with Georgia that the impoundment issue should be faced now by the court.

"There are presently pending in the federal courts 37 suits involving the validity of spending controls," said Bork's memorandum to the Justices. If the high bench were to appoint a "special master" to take evidence in the cases, and were then to swiftly review the master's findings, Bork argued, the resulting precedent would save a considerable duplication of effort in lower courts.

For all his conservative reputation, Bork defines himself more precisely as "a classical liberal--someone who thinks that governmental intervention in individual affairs always has to be examined closely to make sure that the benefits of the intervention exceed what are bound to be the costs." In a series of interviews, TIME's David Beckwith sought a sense of how that general philosophy might apply to the positions the new Solicitor General will be urging the Justices of the Supreme Court to adopt.

Racial discrimination is one example of an area where the court has a proper constitutional mandate, in Bork's view. But when it comes to school financing, he approves the Supreme Court decision last March that the Constitution does not require the state to balance spending in rich and poor school districts. "Everyone talks about what a shame it is that the Supreme Court failed to require the equalizing of public school expenditures," he says. "But nobody talks about whether the court is the proper body" to accomplish that end.

For Bork, "this is obviously an area that is best left to the political process, not the judicial."

In his opinion, the court's ability to end inequities and solve social problems is vastly overrated. Its efforts strain its authority, lowering the law to just another element in the power struggle. To maintain a loftier claim to the status of final arbiter, "the courts should wander around only in those areas where the Constitution puts them in business. In other areas, we should be ruled by our democratically elected legislative representatives. Sure, I'm somewhat worried about the possible tyranny of the majority. But what is the alternative? If the majority isn't making the decisions, then somebody else will, and that's what I'm afraid of."

* The Constitution permits the Supreme Court to take original jurisdiction of a case in a number of situations where a state is bringing a suit. Last March it settled a typical such suit by determining that the boundary between Texas and Louisiana is the middle of the Sabine River, not the western bank as Louisiana had contended.

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