Defining The Real Robert Bork

By Jacob V. Lamar Jr

Robert Bork is a centrist judge. An open-minded moderate, he decides cases with the same sense of detachment and fairness that marked the opinions of the man he may succeed on the U.S. Supreme Court, retired Justice Lewis Powell.

Robert Bork is a right-wing ideologue. As a Supreme Court Justice, he would show little respect for the past 30 years of judicial precedent. Acting on dogmatic, narrow-minded views, he might vote to overrule landmark decisions on abortion, civil rights and church-state separation.

These colliding images have set the stage for what is expected to be a highly contentious Senate confirmation hearing next month. By the time Bork begins testifying before the Judiciary Committee on Sept. 15, hundreds of liberal and conservative groups will have spent more than $20 million to promote their sharply different pictures of Bork. Since the President announced Bork's nomination six weeks ago, the pro- and anti-Bork juggernauts have accelerated. "It's like a toboggan going downhill," says Consumer Advocate and Bork Opponent Ralph Nader. "It's shaping up as the biggest battle in a long time." For liberals, the stakes were emphasized by the medical problems of three of the four Justices who usually support their views. Thurgood Marshall, 79, was hospitalized last week for a blood clot in his right foot, and William Brennan, 81, for a prostate examination that found no cancer. Harry Blackmun, 78, will enter the Mayo Clinic next month for treatment of prostate cancer.

The war of words over Bork heated up last week as Delaware Democrat Joseph Biden, chairman of the Senate Judiciary Committee, delivered his most forthright criticism yet of Bork. A presidential candidate who has already announced his intention to vote against Bork's confirmation, Biden told the American Bar Association convention in San Francisco that Bork might try to revoke "dozens" of the milestone Supreme Court decisions that the judge has called "lawless," "unprincipled" and "utterly specious." Said Biden: "Had he been Justice Bork during the past 30 years and had his view prevailed, America would be a fundamentally different place than it is today."

Later that day former Chief Justice Warren Burger condemned Biden's plan to ; grill Bork during the confirmation hearings. "No judge up for nomination under any circumstances should ever be asked to commit himself on how he's going to vote on a case that's coming before the court at some future date," declared Burger.

Bork's strongest defense, appropriately, came from the White House. In his television address, Reagan cited Bork's confirmation as his first goal for the remainder of his presidency. Bork's nomination, said the President, "is being opposed by some because he practices judicial restraint. That means he won't put their opinions ahead of the law; he won't put his own opinions ahead of the law. And that's the way it should be."

Although some right-wing groups have hailed Bork as a kindred conservative who will shift the court to their liking, Reagan has gone out of his way to portray Bork as a moderate in the Powell mold. The White House has distributed to key Senators a briefing book that outlines many of Bork's rulings and proclaims that his appointment to the court "will not alter the balance in any way."

The White House's depiction of Bork is a "campaign of misinformation," according to Ralph Neas, executive director of the Leadership Conference on Civil Rights. In coordinating the anti-Bork coalition, Neas and his allies have reviewed Bork's record as a Yale Law School professor, U.S. Solicitor General and a judge on the U.S. Court of Appeals for the District of Columbia.

The Public Citizen Litigation Group, an organization founded by Nader, released a report undermining the idea that Bork practices judicial restraint. "In divisive cases, you can predict Bork's vote with virtual complete accuracy, simply by identifying the parties in the case," charges Alan Morrison, head of the Litigation Group. Reviewing the judge's appeals-court votes in 56 split decisions, the Litigation Group said that Bork consistently found for the Government when it was sued by public-interest groups, consumers or workers. But in eight decisions in which business interests challenged the Executive Branch on regulatory or labor issues, Bork sided with business every time. Amid the furor over his nomination, Bork has been quietly lobbying for himself on Capitol Hill. He has met privately with nearly all the 14 members of the Senate Judiciary Committee, assuring the lawmakers that he would bring no prejudices to the court. Five Democratic committee members, however, are expected to vote against Bork, while five Republicans have declared their support. The three most likely swing votes: Republican Arlen Specter of Pennsylvania, Democrats Howell Heflin of Alabama and Dennis DeConcini of Arizona. Whatever the Judiciary Committee decides, the Bork nomination has become so controversial that the final battle over confirmation will take place in the full Senate.

With reporting by David Beckwith and Anne Constable/Washington